You gotta give those Queens prosecutors credit.  They didn’t like the sentences offered by the Legislature, so they decided to up the ante with some imaginative application of law.  All it takes is to call any crime a “hate crime” and, bingo, prison awaits.  From the New York Times :

This approach, which is being closely watched by prosecutors across New York State, has won Queens prosecutors stiffer sentences, including prison for criminals who could otherwise go free, even after draining an elderly person’s savings. Without a hate crime, theft of less than $1 million carries no mandatory prison time; with it, the thief must serve for a year and may face 25.

The legal thinking behind the novel method is that New York’s hate crimes statute does not require prosecutors to prove defendants “hate” the group the victim belongs to, merely that they commit the crime because of some belief, correct or not, they hold about the group.

Some belief they hold about the groups is, well, kinda vague.  No, actually utterly meaningless.  It’s the sort of definition one gets when a group of people all agree that they want to criminalize something, but can’t even begin to put into words what it is.  So they find language that doesn’t appear to offend anyone, without questioning whether the language actually says anything.  Kinda like marketers. 

This approach, which has yet to be addressed by any appellate court, is just plain nuts.  First, there’s the basic fear that hate crime laws criminalize thought, which its proponents argue isn’t the case.  Well, it sure is here, where it flagrantly does so, enhancing a crime based on a “belief”.  I’ve got a ton of beliefs.  I’m dead under this law.

Next, there’s the concern that a bit of imaginative prosecuting converts a garden variety fraud into a hate crime by happily ignoring the laws purpose and playing games with its language.  I see you prosecutors smirking, knowing you got another one past the legislature.  No plea extortion opportunity here, right?

But then, there’s the unintended consequences problem.  What, you ask?  Certainly no fine law and order aficionado will get too bent out of shape at the thought of a defendant facing probation getting 25 years.  Well, the proponents of hate crime laws, those who believed that the crime of murder wasn’t enough to punish a flaming bigot who kills, but demand life plus cancer, will recognize that their efforts have been usurped by the unscrupulous and their goals of ending hatred and bigotry hijacked for less savory purposes. 

The abuse of laws for purposes far afield from that intended, as is the case here where prosecutors are laughing all the way down Queens Boulevard, may fundamentally undermine the viability of hate laws for their intended purpose.  In other words, they may have outsmarted themsevles, and proven better than any defense lawyer’s theoretical argument, that the law is too vague to withstand scrutiny (unless SCOTUS gets its hands on it).  The upshot may be a holding that the law is unconstitutional, which it is for this reason as well as others, and that it’s back to the Legislature to craft some language that actually says what it means.

The New York Legislature?  Yeah, the New York Legislature.  I have a belief about that too, but I fear saying it might subject me to prosecution.