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Lawrence ’77 Dean at GW Law

A reader points out that Fred Lawrence ’77 is the new dean at the The George Washington University Law School. Lawrence area of expertise is hate crimes. See here for an interesting background article.

But were the grisly killings worse because the perpetrators were motivated by the fact that Shepard was gay and Byrd was black?

Absolutely, according to LAW Professor Frederick Lawrence, who argues in a new book in favor of so-called hate crime laws, which mandate stiffer sentences for criminals who act out of bigotry. Punishing Hate: Bias Crimes Under American Law was recently published by Harvard University Press.

“A physical attack harms the body,” Lawrence says. “A bias crime harms the spirit and soul. Bias crimes are also worse than otherwise similar crimes because members of the target community are directly affected, and they often show a great sense of withdrawal and separation from society. And bias crimes impact society at large.”

Maybe. The article also notes that

James Jacobs, a law professor at New York University, thinks the cost of enforcing the proposed federal legislation would derail other federal priorities such as combating organized crime, terrorism, and counterfeiting.

Anyone wish that the federal government had put more emphasis on terrorism back in 1998?

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#1 Comment By frank uible On October 15, 2005 @ 7:23 am

One more brick in the “we don’t like your attitude and are going to punish you for it” thought control road. Williams has its own bricks in this type of authoritarian, intolerant work.

#2 Comment By frank uible On October 15, 2005 @ 8:08 am

David: Please note that in the Deke house of 50 years ago we were often obnoxiously intolerant in many common ways and effectively resisted intolerant infringement by any person upon our intolerances. Is the counter trend going to come full circle but with an iron fist and boil down to what persons of which backgrounds and perspectives decide which attitudes are encouraged or otherwise permissable and which (but certainly not their own) punishable by authority?

#3 Comment By Jeff Zeeman On October 15, 2005 @ 10:17 am

Call me crazy, Frank, I am all for free speech, but I really don’t see how punishing someone for hating someone enough due to their sexual orientation, race or religion that they decide to beat them to death will somehow lead to an intolerant, authoritarian society. If someone gets shot because, say, they slept with somone else’s spouse, it doesn’t marginalize and put in fear a whole group of people based on an invidious characteristic. On the other hand when, to pick one example, blacks were lynched because of their race, it undoubtedly had a profound psychological impact on other blacks in the community.

We have plenty of latitude in this country for people to express their hatred for minorities: far more than, for example, a country like Germany. This also creates psychological harm, but we allow it because of the paramount value we place on free speech. Once the line is crossed between speech and action, however, it is an entirely different story. Do you really want to live in a society where, in the name of “tolerance,” we don’t express official disapproval of violence against minority groups? That makes no sense whatsoever to me.

I love, David, how you pick 1998, by the way, rather than, oh say, 2001, the year when the most successful terrorist attack in our nation’s history was actually planned and accomplished, depsite blatant warning signs that were flat our ignored by the administration. But god forbid anyone besides the ghastly Bill Clinton (who just by happenstance presided over easily the most extended period of peace, prosperity, and fiscal responsibility in the last 40 years)take any blame for any ills that have befallen the country since he left office five years ago …

#4 Comment By Loweeel On October 15, 2005 @ 2:49 pm

Jeff, very simple.

All Constitutional issues aside for the time being, the issue is because hate crimes are, in a very true sense, “thought crimes”.

For everybody else, murder is murder, assault is assault, arson is arson, vandalism is vandalism. But with “hate crimes”, there’s a bullshit extra penalty.

And it might be useful to go into the theories of punishment.

Do increased penalties for “hate crimes” increase…
… specific deterrence? Probably not. If somebody’s going to commit a crime solely for racial animus, it’s exceedingly unlikely that an additional term of years will deter them from doing it again.
… rehabilitation? Probably not. An extra term of years in prison will not likely help somebody motivated by racial animus change his/her ways.
… incapacitation? At first glance, sure. But then again, one need not see Prison Break or Oz, or to read Supreme Court opinions from last term to note that race-based racist gangs are an enormous problem in prisons. Adding increased jail time for hate crimes would only exacerbate this all-too-real problem.
… General Deterrence? Possibly. The only real argument for Race-based crimes is that it will deter others from doing it. But general deterrence is a tort (i.e., civil penalty) argument, and if general deterrence is the primary reason for a crime, then the tort system is a much more valid home for the penalty.
… Punishment? Here’s the really troubling part — all you’re punishing (since these need to “attach” to an already extant crime) is the alleged racial animus. You’re only punishing an alleged mens rea without an additional actus reus, and state of mind is notoriously difficult to prove. Even if somebody may be racist or have racist beliefs, there’s often no external evidence that a particular incident might be motivated by those beliefs.

The really troubling thing about this is that as a crime, all elements of the crime must be proven beyond a reasonable doubt. What will happen is likely what happens with accusations of rape (particularly on college campuses) — the defendant will likely be convicted in the court of public opinion and end up having to bear the burden of proving no “hate crime” as part of the crime.

Additionally, evidence proffered must be more probative than prejudicial. Especially with the heat of racial politics, it would be very hard to find a jury able to deal with evidence of racial animus without being prejudiced by it.

Another issue is that there will almost always be a presumption of a hate crime anytime a crime is committed between people of different races. And of course, I’m sure that this wouldn’t be applied even-handedly.

To any and all interested in this issue (Especially our new Thought Commissioner, Fred Lawrence), I’d highly recommend South Park 4.01 – Cartman’s Silly Hate Crime, in which Cartman is sent to jail under hate crime laws for throwing a rock towards his friend and classmate Token Black. There’s nothing quite like South Park to illustrate just how stupid some of these elitist ideas are.

#5 Comment By David Kane On October 15, 2005 @ 3:27 pm

Jeff writes:

I love, David, how you pick 1998, by the way, rather than, oh say, 2001, the year when the most successful terrorist attack in our nation’s history was actually planned and accomplished, depsite blatant warning signs that were flat our ignored by the administration.

Uhh. I don’t want to get too technical for you, Jeff, but the article I quoted was written in 1998. Feel free to explain why James Jacobs was an idiot to worry about terrorism in 1998. Perhaps he was too stupid to appreciate the “most extended period of peace, prosperity, and fiscal responsibility in the last 40 years.”

#6 Comment By Loweeel On October 15, 2005 @ 4:34 pm

Hate Crime today?
Summary: Neo-Nazis try to exercise their constitutional right to assemble (see Collin v. Smith — the Skokie neo-Nazi march case]), don’t even make it to the parade, 500-600 black protestors with nothing to protest end up assaulting and battering police officers, riot, break-and-enter and then vandalize buildings and local businesses.

Sounds like a perfect time to apply hate crime laws, since they were motivated by racial animus towards the neo-nazis! Let’s put them all in jail!

#7 Comment By Ronit On October 16, 2005 @ 1:56 am

Lowell: neo-Nazis are a race? Huh?

#8 Comment By (d)avid On October 16, 2005 @ 12:09 pm

Lowell, your comments are highly informative of your views on race in America:

1) The blacks had “nothing to protest,” despite a group identifying itself as “America’s Nazi Party” gathering in the park for a protest;

2) The blacks were “guilty of racial animus,” when it is pretty clear they were protesting the neo-nazis and not whites in general.

Riots are bad. Drug gangs are bad. Blacks are just as capable of racially motivated attacks as whites (and the Fox News article hints that such actions may have been committed — I have no idea if this is true). I’m not completely sold on hate crime legislation. But your analysis of this article is a willful misreading. Either your views on race are appalling, or you write offensive things attempting to “score points” against hate crime legislation (which isn’t terribly dignified either).

#9 Comment By Loweeel On October 16, 2005 @ 5:57 pm

(d)avid, the Nazis never ended up marching. They were “Heckler’s Vetoed”, and escorted out by the police.

Also, if the protestors in Toledo were just “protesting the nto-nazis and not whites in general” then why did they assault police officers and reporters, and end up trashing and looting the white-owned businesses in that neighborhood. I’m pretty sure that the SW VA Nazis didn’t own the buildings that were trashed and looted.

Also, Ronit, the assaults, vandalisms, and thefts were against all the whites in the area, not the neo-Nazis, who had left before the riots really got started.

Ball’s in your court, (d)avid.

#10 Comment By (d)avid On October 16, 2005 @ 8:07 pm

Lowell, according to the article you linked to 20 Nazis were gathered at a park ready and waiting to march. The other groups (including S.H.A.R.P.s interestingly enough) clearly came to the park in order to protest the Nazis.

“[W]hy did they assault police officers and reporters, and end up trashing and looting the white-owned businesses in that neighborhood.”

I’ll posit that the people came to the park (and that particular neighborhood) to protest the Nazis. At this point, there was a large and angry crowd, the police fired “flash bombs” into the crowd (note: I don’t know what those are), the crowd responded by throwing rocks at the police, mayhew commenced, and a riot ensued. I don’t think the rioters planned anything or targeted the particular neighborhood. Hence, it doesn’t even approach the definition of hate crime according to the law.

There is large literature on rioting in political science and sociology. You can apply pretty much any social theory that suits your fancy to explain a riot and I bet an article has already said it. Tipping points? Yup. Herd behavior? Yup. Information cascades? Yup. Coordination games? Yup. Poverty? Yup. Pent up frustration and resentment? Yup. Opportunistic behavior on the part of a few criminals? Yup. Riots happen in most cultures and with a large number of empirical regularities associated with them.

I suppose a riot could be a hate crime. Race riots have occured (e.g., Tulsa 1921, Detroit 1943, Chicago 1919, Wilmington 1898, Atlanta 1906). These might count as hate crimes — the goal was certainly to intimidate and kill members of another race. Tulsa was particularly appalling in that regard. However, attributing the motives of a crowd to a particular individual would be difficult in most cases (the pre-planning in Wilmington or the orchestration of Tulsa might make it easier to assess individual blame and motives).

For a more generic riot, how would one determine a hate motive? I suppose a prosecutor would need to establish that a rioter stopped to consider what was happening, consciously decided to target a white (or Korean, in the case of the LA riots) person, house, or establishment and then commit the crime. Most news stories of the Toledo riot have mentioned gang members in the crowd. Several have intimated that the gang members coordinated activities among themselves. Perhaps they engaged in such activity, but the article you linked to would not indicate any such motivation.

At any rate, “nothing to protest” was a ridiculous way to describe the angry crowd gathered. Ascribing racial animous to the riot also appears premature at the very least. The riot does not resemble the activities of any of the race riots described above (read about Tulsa … now THAT was a racially motivated riot).

#11 Comment By Jeff Zeeman On October 16, 2005 @ 8:15 pm

First of all, I am by no means a huge advocate of hate crime legislation (I agree there are certainly serious constitutional as well as practical issues involved), I was more reacting to Frank’s cries that the skies were falling because we would even contemplate such a thing — I was just saying that there is a BIG difference between, say, campus speech codes and punishing those who committ race-based violence.

Lowell, without getting into it in any great depth, I will just quickly respond that of course mental state — intent — is relevant to a whole variety of crimes. I mean, different degrees of murder are based in large part upon the mental state at the time of the crime. So are various self-defense exceptions. All the time, we evaluate what an objectively reasonable person would think about a situation, or even what someone’s subjective intent was, in establishing or undermining mens rea, etc. So I don’t think hate crimes are as far off the reservation as you portray them. Not to say a distinction can’t be made between deliberately and with premeditation intending to harm someone, and the underlying motivation for that desire to harm — but your attack is definitely overbroad the way it is worded. I don’t know if you took Jacobson’s classes, but I seem to recall that despite being a big First Amendment guy and far from a lefty he provided a fairly compelling defense of hate-crime legislation. Not really my area of expertise so I won’t try to write a pale imitation here.

David, I thought your comment was just your own thought, since it was outside the context of the quote, and not necessarily related to the date of the article itself (indeed, I had no idea the article was even from 1998 when reading your post). I just assumed it was one of the numerous instances of reflexive dem-bashing / gop-defending so prevalent on the part of the overwhelming conservative authors on this blog and the other legions of, in my mind, incredibly hypocritcal conservative media commentators (see, e.g., anyone on Fox News) … but I apologize for my misunderstanding nonetheless.

#12 Comment By Loweeel On October 16, 2005 @ 10:32 pm

(d)avid:
When I say that they were protesting nothing, I mean that the Nazis did not even end up marching. The protestors gathered to protest the march, and ended up preventing it. Thus, they had nothing to protest because the march never happened. It was, if you’ll pardon the metaphor, aborted.

From reading news reports about the riot, it appears that it was a mixed Polish/Black neighborhood. Also, most of the protestors were from the neighborhood. Thus, I think it’s safe to posit that the majority of the protestors knew who owned which stores, which makes it like the racial element in the LA riots. Insofar as hate crime laws have any validity (and I do not believe that they do), that’s a hate crime as it’s motivated by racial animus, or using racial animus as an excuse for theft and vandalism.

The article I linked to was written early on during the riot, and like anything written while an event is going on, is necessarily an incomplete picture. The reason I linked to it is because it came up on the tv while reading your first response.

Viewing the video linked to that article is rather disturbing, however.

Jeff:
I didn’t take Jacobsen’s course(s). AFAIK, he was more-or-less within the normal range of Williams profs politically (which I’d certainly consider “a lefty” albeit not a wacky one). That being said, they were part of PSCI, and law is its own animal.

One of the things I learn more and more every day is that “lay legal” writing, particularly on political hot-button issues, probably obfuscates more than it illuminates. Reading most reporting on legal issues is so results-oriented and completely ignores the legal (as opposed to the policy) issues that it makes me nauseated.

#13 Comment By David Kane On October 16, 2005 @ 10:35 pm

Jeff,

With regard to the “numerous instances of reflexive dem-bashing / gop-defending so prevalent on the part of the overwhelming conservative authors on this blog,” I will be sure to speak with Diana, Guy, Reed, (d)avid, Derek, Eric and all the other right wing ideologues at EphBlog about your concerns.

Oh, wait a second. None of these authors are Republicans! Silly me. And, since I am a registered independent, I am having trouble identifying these rapid, Republicans that you seem to see everywhere. Even Lowell is a libertarian, for goodness sake!

In any event, the solution to too many comments/posts that you don’t like on EphBlog is more posts by you. See, for example, the many interesting threads started by Reed recently. You have the power.

#14 Comment By frank uible On October 16, 2005 @ 11:24 pm

Loweel: A disposition toward sound jurisprudence is good policy!

#15 Comment By Loweeel On October 17, 2005 @ 3:04 pm

Full Disclosure: When living in (and registered in) NJ while of voting age (i.e., Jan. 1999-July 2004), I was a registered Republican in my overwhelmingly Republican county, albeit simply so I could vote in local primaries and pick the most libertarian candidates.