Wednesday, May 28, 2008

Bill o' the Day: Fall of the Noose

The current statute on racial intimidation/hate crime in NC is this, as far as I can tell:

GENERAL STATUTES Chapter 14

§ 14‑3. Punishment of misdemeanors, infamous offenses, offenses committed in secrecy and malice, or with deceit and intent to defraud, or with ethnic animosity....

(c) If any Class 2 or Class 3 misdemeanor is committed because of the victim's race, color, religion, nationality, or country of origin, the offender shall be guilty of a Class 1 misdemeanor. If any Class A1 or Class 1 misdemeanor offense is committed because of the victim's race, color, religion, nationality, or country of origin, the offender shall be guilty of a Class I felony.

§ 14‑401.14. Ethnic intimidation; teaching any technique to be used for ethnic intimidation.

(a) If a person shall, because of race, color, religion, nationality, or country of origin, assault another person, or damage or deface the property of another person, or threaten to do any such act, he shall be guilty of a Class 1 misdemeanor.

(b) A person who assembles with one or more persons to teach any technique or means to be used to commit any act in violation of subsection (a) of this section is guilty of a Class 1 misdemeanor.


New Legislation, introduced yesterday by Senator Berger of Franklin County:
A BILL TO BE ENTITLED

AN ACT to make it unlawful to burn a cross or hang a noose for the intent of intimidating another person because of race, color, religion, nationality, or country of origin and to study the impact of recent cross burnings and noose hangings across the state to make recommendations for modification to the criminal laws of the state.

The General Assembly of North Carolina enacts:
SECTION 1. Chapter 14 of the General Statutes is amended by adding a new section to read:
"§ 14‑401.14A. Unlawful to burn a cross or hang a noose with the intent to intimidate.
If a person shall burn a cross or hang a noose with the intent to intimidate another because of race, color, religion, nationality, or country of origin, he shall be guilty of a Class H felony."
SECTION 2. The Legislative Research Commission shall study the impact of recent cross burnings and noose hangings within the State and determine if any modifications should be made to existing statutes to lawfully deter this type of conduct. Of funds appropriated to the General Assembly for the 2008-2009 fiscal year, there shall be allocated the sum of twenty thousand dollars ($20,000) to fund this study. The Legislative Research Commission shall report its findings and make recommendations for legislation to the 2009 Session of the General Assembly.
SECTION 3. This act becomes effective December 1, 2008, and applies to offenses committed on or after that date.


My view:

1. A study? Really?
2. The new legislation is not as bad as the existing law, and I had not seen the existing law. Punishing someone for "ethnic animosity" is pretty vague. Punishing someone for burning a cross is at least specific. And, "intent" is always hard to guess. But if somebody burns a cross in your yard, it is likely intended to intimidate and terrorize.

The law makes a distinction between me putting a pile of garbage in your lawn, and setting it afire, and putting a cross in your yard and setting it afire. That distinction, at least, seems right: burning a cross really is an assault. But a "class H felony" has a presumptive punishment of three years imprisonment, even if no other action or assault takes place.

Please discuss.

15 comments:

Tom said...

Our dim witted, fumbling legislators are trying to say that it is an aggravating element of a crime to threaten or intimidate a broader class of people, beyond the actual victim. At least, that's the charitable interpretation of what they're doing.

If they would just say that, then a jury could decide if that cross I burned in Mungowitz's yard was a threat against all Duke professors. If so, I get extra jail time for the harm done to addtional victims.

The current wording confirms my low opinion of the legislature.

Barnaclese said...

The new legislation seems to be in addition to, rather than replacing, the existing law. So if you burn a cross, you still get a misdemeanor charge for "ethnic animosity", and then you can also get an additional felony charge for burning the cross. At least that's what it looks like.

I'd rather have neither section, or at least only one, than to have both, for the reason tom describes.

br said...

Berger fails to include other similar forms of intimidation, such as: (1) using chemicals to burn a swastika in to someone’s yard, (2) burning effigies, (3) spray painting “I’m going to kill you, you filthy [racial epithet]” on the person’s property, etc. The actual purpose of the bill is to advertise to people that Senator Berger cares about black people.

This law is reminiscent of many ‘special sentencing for gun crimes bills’, whereby there’s already a law against killing someone, but if you do it with a gun it’s worse than if you do it with, for instance, a spoon.

Dirty Davey said...

Folks outside the Triangle are potentially lucky--they might have managed to escape the groaner in the headline.

Anonymous said...

I remember looking at this type of law when that bastion of liberal correctness, CH, brought their first case under the town's law - against a minority attacking a non-minority (gasp). It did not go over well the group the law was "designed" to protect.

Moreover, there are two major flaws with these laws. The first was pointed out by the previous commentators wondering why legislators attempt to make an act, which is already classified illegal, MORE illegal when it is done is a specific way or against a specific person. It would make more sense, if for public policy reasons to want to condemn a dangerous behavior, to increase the penalty for any dangerous behavior regardless of how it is committed - i.e. murder with or without a spoon.

The second problem is one that I've never seen addressed. Under the law an illegal act has differing degrees of punishment based on the concept of intent. Therefore, the act of murder is illegal, but the degree of punishment is based upon intent. E.g. Did you intend to murder someone with a spoon, or was it an accident that occurred when you where cleaning your spoon in a negligent way? If the later then it's manslaughter, and hence less of a punishment (of course if it's an accident with no cupability, then there may be none).

The rub with HC laws is that they base punishment on act + intent + motivation. The act and intent apply to the already proscribed behavior that will be punished no matter who it is against. The idea of motivation is unique, in that the law will now look at what motivated a person to commit the act, and if the motivation is improper, then the act will garner further punishment. This is a new development in the law, one that has significant ramifications, such as for free speech and thought.

The only instance I have been able to find where motivation matters is as a defense. And only when the defendant raised the "distressed state of mind" scenario - e.g. came home and found spouse in bed with someone else and killed them. The act and intent are not at issue, rather it's whether the motivation is reasonable given the distressed state of mind and society can not expect someone to act rationally. And in these situations it only decreased the punishment, not increase it.

This is a long winded analysis, but I have long been surprised that legislators who claim to want to "protect" people will do so in a way that radically changes the law, and in a way to reduces everyone's freedom.

John Thacker said...

Folks outside the Triangle are potentially lucky--they might have managed to escape the groaner in the headline.

Indeed. Still considering whether "Falls of the Noose" would have been a better pun.

Anonymous said...

So if black people picket a white employer, is that a crime? Is it intimidation?

Anonymous said...

in reply to anon, if picketing was a crime, and they where motivated to picket due to the race of the employer (as opposed to higher wages), then yes, it would be a hate crime.

the problem is when it clearly is a crime, like assault. if I punched to driver of a DHL delivery van when he hit my car because he ran a red light (which I almost did today), it would be a crime. if the prosecutor decided that my motivation for hitting him was because of his race, ethnicity, national origin, etc., rather than his running into my car, then i would be subject to a greater punishment for the crime of assault. But nowhere else in the law is motivation an element to a crime. so now the defendant needs to defend his motivation for committing the illegal act, which is an element of the crime of assault.

This goes back to the beginning. I we think that assaults are harmful to everyone, and especially some groups, then why not increase the penalty to reduce assaults. By saying some thoughts more harmful then others, then we are saying that all animals are equal, but some more than others.

-the original anonyman

Anonymous said...

I forgot the word NOT in this sentence:

But nowhere else in the law is motivation an element to a crime. so now the defendant needs to defend his motivation for committing the illegal act, which is NOT an element of the crime of assault.

Dirty Davey said...

The point is that a bias crime has additional victims/targets other than the victim of the underlying crime.

Contrast a random home arsonist with a racist who burns down the home of the first black family to move onto a particular neighborhood. In the second case, the victims are not only the family whose house burns down but also any black folks who are intimidated from moving into the area because of the threat of additional fires or other violence.

To claim the firebug and the racist should be punished equally is to in effect say the intimidation does not constitute any additional harm or additional crime--which is false.

Re: "nowhere else in the law is motivation an element to a crime"--plainly false. Motivation is an element that clearly enters into sentencing for a wide variety of crimes.

br said...

Per DD's scenario.

I would say the victims are the first black family and the existing neighbors. If the arsonist has scared off a large group of potential buyers, there will be downward pressure on demand (and therefore price) for homes in the neighborhood.

Black families who might have been considering a move to the neighborhood are beneficiaries of the arson, because they will now look exclusively at more black-friendly neighborhoods.

Perhaps, a civil suit by the neighborhood against the arson might be the best option and deterrent.

Shawn said...

BR; black families not yet living in the arsonized neighborhood are not beneficiaries, they're victims of the crime as well. it doesn't necessarily mean that the whole neighborhood is anti-black, just the arsonist himself. also, this 'forcing them to look into more black friendly neighborhoods' limits their market, their choice, and therefore their opportunities.

br said...

Now, I didn't say 'forcing them'.

The idea is that the reaction of the neighborhood to the arson provides information which would be of benefit to people who were considering moving there.

I would rather make an informed decision and choose not to move to an anti-black neighborhood, rather than an uninformed or pioneering decision (like black family #1).

The impetus is really on the neighborhood to take action to protect their property values. If the state adds additional punishment to the arson, the effect is only that the state is trying to encourage its values. Just because the state of Louisiana has special legislation doesn’t mean I’m going to give equal consideration to all neighborhoods in New Orleans.

Anonymous said...

First, let me apologize in advance to the many readers of mungowitz blog for another absurdly long post, but I find myself enjoying reliving my grad/glory days discussing the topic of my mercifully unfinished dissertation. I promise not to post again for a while, if ever.

Now, in response to dd's comments:

1)dd points out that a rationale for HC legislation is that there are others affected by the crime (people who can identify with the the targeted victim) in addition to the actual victim/target. I agree with this premise as a rationale for the law to recognize others as incidental victims, in addition to the actual victim. But then following this logic it should be extended to all crimes where others may identify with the targeted victim.

As an example, my parents live in rural Maine in a town with no police force. A few weeks ago there was a violent break-in and the residents were severely beaten. The violent crime rate in town increased 100% (from 0 to 1). My father, in response to the incident felt threatened (my parents live in town and sleep in their home at night, as did the actual victims), so he bought a gun. I doubt he has even fired one since Vietnam, and have serious concerns of him trying to handle one in an emergency at his age. But following the rationale for Hate Crime legislation, here are non-targeted individuals who are similarly situated (residents who live in town) and now feel threatened due to a crime targeting a resident at night in their home.

So if we agree that there are more victims in addition to the targeted victim, i.e. those that can identify with the targeted victim in some way, then we should increase the penalties for every crime in an effort to decrease their occurrence. The problem with HC legislation is that is picks certain shared characteristics, when logic dictates that almost any crime will result in some non-targeted individuals identifying with some characteristic(s) of the actual victim.

The response from HC advocates is that characteristics specified in the law are those which many vulnerable groups share, such as race with minorities. However, recall that it's not only traditionally vulnerable groups like minorities who are "protected" with HC laws, but also non-minorities. This is why there was outrage when CH first used the town's law. Why were non-minorities, who were not viewed as "vulnerable" being protected from minorities, who were thought to be the "vulnerable" group that the law was supposed to protect, not prosecute?

To confuse this situation further in regards to protected characteristics, California includes membership in labor unions as a HC category. So theoretically, if you commit a crime against someone you targeted due to his membership, or non-membership (i.e. scabs), in a labor union, then you are committing a hate crime!?

2) Finally, as to dd's response to my comment:

Re: "nowhere else in the law is motivation an element to a crime"--plainly false. Motivation is an element that clearly enters into sentencing for a wide variety of crimes.

Yes, many factors enter into sentencing decisions, including motivation. BUT, a HC is, in itself, a separate offense under which the defendant must be convicted. It is not simply a sentencing recommendation. To be convicted of a HC incident, the gub'mint has the burden of proving, in court, that you were motivated to commit the illegal act against the victim due to a characteristic of the victim listed in the HC statute.

Read, for example, NC's statute:
(c) If any Class 2 or Class 3 misdemeanor is committed because of the victim's race, color, religion, nationality, or country of origin, the offender shall be guilty of a Class 1 misdemeanor.

"BECAUSE OF" are the key words. While the statute specifies how the penalty will be increased, the defendant still needs to be actually convicted of a hate crime (in addition to the underlying illegal act, but the point is that HC laws are separate convictions). This is done at trial, and can only be accomplished by the gub'mint proving beyond a reasonable doubt that the defendant was MOTIVATED to commit the illegal act "BECAUSE OF" a protected characteristic that the victim possesses.

Hence, a HC is the only criminal act that I've found where the someone can be convicted due to his motivation. Even treason does not include motivation as an element of the crime. As a democratic society, I find it disturbing that a defendant could be convicted of a crime based on his thoughts. Which goes back to the first point. If we are concerned about the social ramifications of a crime, then increase the penalties to discourage them, rather than having the gub'mint single out a defendant for a harsher penalty based on their thoughts. If not, Animal Farm doesn't seem like such an absurd parable after all.

Anonymous said...

So if I am white and a black American ties a noose in my yard, is he prosecutable under this legislation?

Furthermore if other white folks abort their intentions to move into this neighborhood because of this incident can we pile on more charges?

How about just say: let's start the long slow process of legalized assault on free speech and European Americans.

Once we are a balkanized minority, we will have to seek to overturn these laws or add other ethnic intimidation charges to them...namely, anti-white hate crimes.

By the way, what's all the damn hub-ub. Legislating a noose when black on white crime is the real problem is not even mentioned.