Death Plus Hate

When word broke of the Kansas murders by 73-year-old White Supremacist Frazier Glenn Cross, the cries for hate crime prosecution immediately rang out.  After all, if anyone deserved to be prosecuted for a hate crime, it was this killer.

As Judge Kopf notes, the murders of three people were the height of irony.

[A] former “Grand Dragon” was going on a shooting spree at the Jewish Community Center and nearby retirement village in Kansas City. The shooter killed three people. Two were Methodists and one was Catholic.

The oldest victim was a physician and a grandfather who was taking his grandson, the second victim and a 14-year-old singing sensation, to an audition at the Center. The third victim was a Catholic woman who worked as an occupational therapist assisting the visually impaired. She was visiting her mother at Village Shalom. Thankfully, no Jews were killed or injured.

To any sane person, that the shooter set out to slaughter Jews but mistakenly ended up mowing down Christians stretches the meaning of irony to the breaking point.

He goes on to note that it is anticipated that Cross will be “charged federally under 18 U.S. Code § 249,” the hate crime enhancement.  The statute provides that a person convicted of a hate crime

(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—

(I) death results from the offense;

There is no dispute that this crime, assuming all the information is accurate, is a hate crime in its most virulent sense, and that Cross, if guilty, is as despicable and repugnant a human being as can be.  But what does this have to do with the fact that he murdered three people?

We hype up crimes with feel-good laws designed to massage our souls to express our antipathy for not just the crime, but the motive for the crime.  Are we not sufficiently angered by the senseless murder of three people?

The victims of this tragedy are hugely sympathetic, and they deserve that sympathy.  But if the victims had been recluses, sitting in the dark drinking cheap whisky and doing nothing to help any other person or contribute to society, would their murders have been shrugged off as inconsequential?

And should Cross be convicted of these hate crime murders, will his sentence of “any term of years or for life” be any different than the sentence imposed for three murders otherwise?  Or will we just hate him that much more because of the reason he committed these murders?

The words of Lee Rowland keep coming back to me:

 ”Criminal law is a blunt instrument for regulating human dysfunction.”

We prohibit the conduct of intentionally killing a human being.  Criminalizing the act of murder with penalties as severe as society deems proper impose, is a proper use of this blunt instrument.  But that’s not good enough. We must superimpose an additional crime, the commission of murder with hatred.  As opposed to those murders that happen with more benign motives?

Years ago, Jerralyn Merritt at Talkleft pondered where we go from here, when we really, really hate the criminal. Would he be sentenced to life plus cancer?  The abandonment of the criminal law as a means of controlling conduct that society finds unacceptable, and instead using the criminal law as a weapon to vindicate feelings about the criminal, is a dangerous path.

In the case of a murder, it’s a pointless effort to hype a crime as motivated by hate, as it has no impact on sentence and merely adds a level of rhetoric that makes it harder, if not impossible, to not let emotions influence the requisite cold, detached view of the evidence.  Whether the evidence against Cross is overwhelming is irrelevant; the law doesn’t apply only to him.

What hate crime laws do is feed into a dangerous belief that this isn’t about the conduct, but about how much we hate the criminal for being a hater.  It’s vindicating public outrage.  It’s wallowing in emotion when the thing we need most is detachment.

If there was no hate crime law, people would still hate Cross, for what he did and why he did it.  No law can prevent people from feeling as they do.  And that, ironically, goes for people like Cross, anti-Semitic and white supremacist, who will hate as he sees fit.  And should Cross be convicted of this triple murder, he will be punished for it as he should be.

By enacting laws that institutionalize emotion, that inject societal hatred into the view of whether a person is guilty of the crime charged, we swing that blunt instrument with our eyes clouded and filled with tears.  We are so angry, as the law says we must be, at not just the crime, but the purpose behind the crime, that we cannot step back and make the unemotional, detached assessment of guilt that due process demands of us.

This is pure self-indulgence, and it has become a feature rather than a bug.  The worse the crime, the more horrible the tragedy, the more we need to separate ourselves from emotion so that we can provide detached focus on the law.  Once emotion becomes the law, we are half-way down the path of just stringing him up because we hate the criminal so much.

16 thoughts on “Death Plus Hate

  1. Richard G. Kopf

    SHG,

    I agree with almost everything you write. Still, when the murder is intended to impair the First Amendment religious rights not only of the victims but also their fellow believers (congregants), there is a place for federal intervention in the criminal process. Of course, federal prosecutors need to use discretion when to charge these crimes, but I think this crime fits the bill.

    All the best.

    RGK

    1. SHG Post author

      My issue isn’t with federal intervention, or who does the prosecuting, but that whoever does the prosecution focus on the conduct of the crime rather than the hateful motive surrounding it. Morris Dees kept a list of organizations that fostered hate. We’re coming full circle to hating the haters. This blinds us.

      If we’re going to justify hate crimes by impairment of First Amendment religious rights, then the feds ought to take a hard look at the Louisiana legislature, where they are trying to make the Bible the state’s “official book.” One nutjob killer can hardly do as much impairment of religious rights than a state of the union.

  2. Richard G. Kopf

    SHG,

    No argument here for the essential point that hate has no place in the enforcement of our criminal law. Cold retribution yes.

    As for making the Bible the official book in cajun country, I vote, instead, for the Kama Sutra. I am positive that New Orleans is leaning my way.

    All the best.

    RGK

    1. Turk

      As for making the Bible the official book in cajun country, I vote, instead, for the Kama Sutra. I am positive that New Orleans is leaning my way.

      This blog needs a like button.

  3. Andrew Wiggin

    Didn’t James Byrd’s murderers get the death penalty (I know what you think of that) even without double plus hate?

    The sole use I can see for “hate crime” legislation, is where the “hate crime” can be proven a threat designed to deprive rights of a group other than the individual victim, ie klansmen (or black panthers) assaulting potential voters near polling stations. Unfortunately (or fortunately depending on your perspective), the largest group I see doing that are government agents against the populace – with little regard for color or creed.

    1. SHG Post author

      Even then, it’s double-dipping, as the assault remains a crime without regard to motive. Without an underlying hard crime, the “hate crime” is one of thought without action. God help us when that’s separately prosecutable.

  4. Lagaya1

    As spectators, we like to blame both the victim and the perpetrator. Since the victim is blameless in these types of crimes, we have to blame the perp twice. It’s simple math.

  5. jahigginbotham

    Are “hate” crime perpetrators more likely to commit similar crimes again? The motive for a “hate” crime is presumably more persistent than motives for other crimes. That could be a possible rationale for having a more severe sentence, assuming the punishment has any subsequent deterrent value. Or could it be that in addition to our (self-evident) justified hatred of hate crimes, it removes any chance of casting (partial) blame on the victim, thus making ourselves seem to more likely be a potential victim?

    1. SHG Post author

      If a guy makes it to age 73 without committing murder, it’s hard to argue that he’s a recidivist risk on either end for murder. First, he didn’t murder up to now. Second, he’s not coming out regardless.

      But more generally, we can play around with inventing ex post rationales for hate crimes, but they are nonsense. The rationale is they’re hate crimes, and so there must be a special law against them. It’s a recurring theme over the last generation.

  6. ryan

    I tend to agree with you that hate crime laws are unnecessary. But in criminal law heightened or reduced penalties are dispensed all the time dependng on changes in mens rea and manner of killing. Should it matter whether murder is committed by poisin or strangling a person to death? It does down in Virginia.

    1. SHG Post author

      The means of murder may be used as a proxy to reflect premeditation, which some states deem more culpable than heat of passion murder.

      1. Ryan

        I agree, and I believe that the same is going on with hate crimes, they are being used as a proxy to reflect a mens rea state deemed more culpable than others. I believe your point, which I agree with, is that this is mistaken. But, I don’t think hate crimes are an aberration from how harsher sentences are already meted out, by elevating certain mental states at the time of the crime over others for punishment.

        1. SHG Post author

          I don’t think you have a clear understanding of mens rea, which relates to the level of intent and/or knowledge rather than the motive for the conduct. There is absolutely nothing about hate crimes that relates to the mens rea element.

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