A Legal Question For Law Students (About Hate Crimes).

It's an interesting thing in constitutional law. About thought and crime. Our HS Street Law teacher said that the state can outlaw thought. He pointed out that that was the difference between first and second degree murder. Your private thoughts. But I think that he was just talking about intent. Intent is thought put into action. Isn't it? Because I know the Supreme Court has also said that freedom of thought is absolute, in numerous cases. But as I said, when are thought and action the same thing?

Some people think hate crimes are a form of thought control. Because the action is already illegal. Defacing a Jewish cemetery. Or attacking someone because of their ethnicity. So, some people argue, why should we concern ourselves with private thought then? But in Wisconsin v. Mitchell, 508 U.S. 476 (1993), the US Supreme Court did uphold enhanced sentences for crimes of bias.

I should tell you. I am not sure where I stand on the issue of hate crimes in the US. I think they should be outlawed personally. But I do believe in fundamental civil rights under the constitution. So I am a little confused by all of this too.

So what's the conclusion then? Thoughts? Comments? And I have to ask. Any new law students here? What are your opinions? And what does the US Constitution really say on this subject?

 

Well, considering that such laws stand at the Federal level and in 48 of the 50 states, there isn't much point in debating Constitutionality. Essentially everyone charged with a hate crime tries to challenge the constitutionality in some motion, pleading, or in plea negotiation, without success. The Federal Government has been prosecuting hate crimes since the Civil Rights Act of 1968. Inclusion of gender identity is relatively new, but the underlying legal basis is not, such as in the case of race or national origin.

At the Federal level, laws against hate crimes allow DOJ to prosecute crimes that local prosecutors will not pursue under state law. Also, although 48 states have hate-crime legislation on the books, 2 do not, and the states are all over the board on the bias categories that are covered. For example, Connecticut law covers all of the Federal bases, but Arkansas law covers only crimes based on religion.

You're correct in saying that freedom of thought is an absolute, but that only applies to thought in the absence of action. Intention, state of mind, malice, bias and such factors are routinely baked-into criminal law. It isn't simply in guilt or innocence, but rather also and more explicitly in sentencing. There are always aggravating and mitigating factors, and many of them involve thought. If you've ever heard the terms "depraved indifference" or "willful and wanton," they are very old legal terms and concepts that apply in the same way that crimes of bias do.

The person who fires through the wall of his apartment, while cleaning his gun, hitting a neighbor, commits a prosecutable crime. The law appropriately recognizes that the person who intentionally fires into a school yard full of first and second graders, hitting one, commits a different class of crime. He poses a greater danger to society. Hate crime legislation applies the same principle - that crimes of bias are especially inconsistent with civilized society.

Remember also that the prosecutor's job isn't just to claim a bias motivation for what would be a crime anyway. The prosecutor has to provide evidence of such. Consider that the key: something the perpetrator yelled at the scene of the crime, posted online immediately before committing the crime, bragged about to others immediately after committing the crime, or admitted to during questioning by law enforcement.

People don't get charged with hate crimes unless they themselves created the evidence for the charge. They don't get convicted unless the evidence is convincing.

 

I have trouble understanding what you see as a problem. Mens rea (criminal state of mind) is an element of most crimes. It makes a difference whether or not a criminal act was done deliberately, recklessly, negligently, or accidentally. And it matters whether breaking into someone's home is done to steal something or to get out of the cold. Killing or assaulting someone is an offense against society, but it takes on a special significance if it was done because of the ascriptive characteristics of the victim. So what do you see as the problem with enhancing penalties when the crime is done out of hatred for the race, ethnicity, gender, religion or sexual orientation of the victim? Obviously, if you have evil thoughts that you don't act on, you're not going to be prosecuted for a crime. You can't go to jail for what you're thinking. But if you act on it, that makes a big difference. How do we know you did it because of what you were thinking? By inference. If a person has a history of expressing hateful attitudes toward others because of race, that would be evidence. Yes, intent is thought put into action.

You mention that "the Supreme Court has said that freedom of thought is absolute, in numerous cases. Can you name one? I can't, unless we're equating "thought" with opinions. The Bill of Rights protects a number of specific freedoms, including freedom of religion, speech, and assembly (these are sometimes generalized into "freedom of expression", applying to opinions); but nowhere does it protect freedom of thought per se, nor are even these absolute. Your right to hold and express hateful opinions is constitutionally protected, but be careful when you express them that you don't follow through with criminal acts against member (s) of the group you're on record as hating. Only God can detect and punish bad thoughts. But when your conduct manifests racism, sexism, xenophobia, homophobia, etc. and correlates with action injurious to a victim meeting those characteristics, the law can make it a hate crime. Whether or not that's appropriate can be debated, but the law does do it, and it's up to the legislature to define it and the police to enforce it.

 

Palko v. Connecticut, 302 U.S. 319 (1937)

Wooley v. Maynard, 430 U.S. 705 (1977)

https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf

And I think our founding fathers would agree that freedom of thought was implied by the First Amendment. As Benjamin Franklin said, "Without freedom of thought, there can be no such thing as wisdom – and no such thing as public liberty without freedom of speech".

 

Hmmmm. Are you citing these in response to my request for a case that asked for a case stating that "freedom of thought" is absolute? None of these cases mentions "freedom of thought". Palko was about double jeopardy, and whether or not the Fifth Amendment protection against it was applicable to the states via the Fourteenth Amendment. Wooley was about freedom of religion and the unconstitutionality of a state making Jehovah's Witnesses put a license plate on their car with a slogan they disapprove of. 303 Creative LLC v. Elenis was about whether or not a website designer had to provide services to a gay couple despite her personal objections to same sex marriage. As I said, I can't think of a case in which the Court said freedom of thought was absolute, unless you're equating thought with opinion. That seems to be what you are doing. First of all, while speech and religion involve thought, they aren't the same thing as thought. Thought is something that goes on inside a person's head. It's effectively beyond the direct reach of the law Thought can become "speech" when expressed, and "religion" when it lead to manifestations of religious faith. Then they are protected by the Bill of Rights up to a point. But none of them are absolute! The courts don't allow obscentiy, defamation, crying fire in crowded theaters, etc,
Unalienable Rights Are Not Absolute
Freedom of Religion Is Not Absolute - Prindle Institute
Here's the thing about free speech: It's not absolute.
https://journals.sagepub.com/doi/abs/10.1177/0306396806066648?journalCode=racb
Ben Franklin was surely correct that freedom of thought is essential to wisdom, but which is why it's important to have access to ideas. The Bill of Rights protects such access, but unfortunately not absolutely. Florida and other states are busily purging libraries of books they consider dangerous or dirty, and the constitutional law working out the meaning of those rights is riddled with exceptions for obscenity, defamation, etc.

The gist of your post seems to be that there's something inherenly wrong with tacking on extra penalties for hate crimes. Unlike obscentiy and libel, hate speech is mostly protected under the First Amendment. https://www.thoughtco.com/hate-speech-cases-721215The Klan and Neo-Nazis can and have marched in places like Skokie, IL, and Charlottesville. But once they go on record for hating, if they go farther and take criminal action against a Jew, they can expect to face enhanced penalties for hate crimes. That was settled thirty years ago in the Supreme Court's unanimous opinion in Wisconsin v. Mitchell, 508 U.S. 476 (1993). The Court doesn't seem to think there's anything illogical or contradictory about enhancing the penalties for actions that seem clearly motivated by racism, sexism, xenophobia, homophobia, or religious bigotry, because of the state's compelling interest in protecting society from the tendency of a bias-motivated crime to provoke retaliation, inflict extra emotional distress on the victim, and incite community unrest. We can still debate the pros and cons of that position.Hate Crime Laws: Helpful or Harmful? - Law Blog
But the courts are satisfied with them, and see nothing inherently unconstitutional, immoral or fattening about them.

 

They all mention freedom of thought (read them thoroughly). And it's a widely known fact. Freedom of thought is absolute. It's probably the only right that is. Any modern constitution that has that right in it agrees it is. And I have read that in more than one place, that freedom of thought is absolute in the United States too.

 

They don't mention it as an absolute. I just provided articles explaining that. Read them!

 

"...under the constitutional guaranty, freedom of conscience and of religious belief is absolute; although freedom to act in the exercise of religion is subject to regulation for the protection of society..."


Cantwell v. Connecticut, 310 U.S. 296 (1940)

 

That would apply only to what is going on inside people's heads, which is obviously beyond the direct reach of government. If the rights were absolute, they could not be subject to regulation for any reason. Here are some articles in addition to the ones I previously provided explaining why rights aren't absolute.
There Are No ‘Absolute’ Rights | Constitutional Accountability Center
There Are No ‘Absolute’ Rights
Why are Constitutional rights not absolute?
Freedom of expression: universal, but not absolute - SWI swissinfo.ch
Is Free Speech an Absolute Right, or Does Context Matter? (Published 2017)
But thank you for digging up those citations.