Victim Impact Evidence Rule

[joreth]

I'm going to give an unpopular opinion here.

I am opposed to the very idea of "hate crimes".

I believe in justice and the safety and rights of the citizens of this country, but I believe that undue emotional impact is used as leverage in a variety of ways in our justice system.

One of these ways is the idea of "hate crimes".  I am opposed to classifying something as a "hate crime" because I do not believe there is any difference between a man who drags another man behind his car until he dies because he doesn't like the color of his shirt and a man who drags another man behind his car until he dies because he doesn't like the color of his skin.  The severity of the crime is what should be considered and I am appalled to think that another man's death is more important than mine simply because of his minority status; that his abuser/murderer will get a more severe punishment because his death is more symbolic than mine is.  I do understand the historical importance of bringing previously-un-cared-about crimes to a level playing field, but I think these kinds of solutions are temporary, at best, and at worst, only serve to further segregate the categories of people whose status they are designed to raise.

I also think it's a form of thought police.  A "hate crime" punishes people more severely for their thoughts, their motivation, than for their actions.  I do think there should be a distinction between "accidents" and "intentional", but why a person intended to kill or maim is, I believe, irrelevant in the justice system.  It's the killing/maiming that is important, and putting a stop to it.

Understanding why might be interesting from a sociological point of view, perhaps to better target preventative measures against crime.  But not in the punishment stage, not after the fact.  It should be wrong to kill because it's wrong to kill.  Not more wrong to kill this guy than that guy.

Related to this thought is a news article I just read regarding the "Victim Impact Evidence" rule.

http://www.latimes.com/news/local/valley/la-na-death11-2008nov11,0,7336659.story

What happens is that familes of a victim are allowed to show video to a jury that details the victim's life; to humanize him, and to make him more "real" for the jury.  This, I believe, has a significant impact on the jury's decision-making progress.

I do not believe it should be allowed for the family to tell the jury how important the victim was.  The victim was human.  Period.  What more needs to be said?  Showing video of the victim as a child, seeing the parents cry, hearing that the victim was an honor student, or a doctor, or somebody's mommy implies that, if the victim were not as popular, didn't have any family, didn't have any major contributions to society, than he would be less important.

What if the victim had no family to make these sentimental videos?  Should the jury then consider that he won't be missed, so the murderer didn't really do anything bad?  As tacit  points out in his recent entry, people make their decisions and their beliefs based on their emotions.  That's just what people do.  The US Justice system is supposed to be "blind", supposed to be evidence-based and as free from human emotions as possible.

Of course, we know that's not always true in practice, but that's the way it's supposed to work.  And I believe that any video or testimony that does not add to the facts of the case, that only serves to more humanize the victim is actively harming the judicial system of blind justice and evidence-based trials.  These videos are specifically designed to tug at the jurors' heartstrings, and to unfavorably bias the jury against the defendant.

They also, in my opinion, imply the assumption that not all humans are equal.  The defendant is not an equal human to the victim (remember, the trial is to decide if the defendant is guilty or not, so he may not actually be the murderer or attacker), and the victim is deserving of more empathy than other people because this victim is so loved, has achieved so much, and has the potential to impact the world to such a degree. 

The guilty should be determined guilty because he is guilty beyond reasonable doubt, not because the jury has an emotional response and a personal bias against some category of people the guilty falls into or because it's such a shame that this particular victim was a victim.  The punishment should be determined based on the severity of the crime, not by how worthy the victim is to receive justice.  A first-degree murder is a first-degree murder is a first-degree murder.  I am appalled that one murder is worse than another based upon the importance of the victim.  The victim is human, and that should be enough importance.

Comments

[corpsefairy.livejournal.com]

One key difference between hate crimes and similar but not racially motivated crimes is that hate crimes, by and large, are terrorist acts. People commit hate crimes in order to punish not just one person, but a group of people - they want to send a message to that group. That's why hate crime legislation is on the books; because such crimes don't hurt only the victim. When a gay man is tied to a post and left to die, it's not simply murder: it's a threat to everyone else who is gay. "This could happen to you," the murderers are saying, "if you don't keep your mouth shut."

[starchy.livejournal.com]

I swear we were not in collusion with these simultaneous comments. Scout's honor. Scouts have honor, right?

[joreth]

But that should be wrong because taking human life is wrong, not because it's wrong to dislike gay people. There *isn't* anything fundamentally illegal with disliking gay people, or a particular race or religion. It's the actions that are (and should be) criminalized.

Gang violence is often a "message", and that does not fall under "hate crimes". 9/11 was a terrorist act, but that doesn't fall under "hate crimes". We have a separate category for terrorists.

The violence should be wrong because violence is wrong, not because the victim falls under a protected class of human.

[starchy.livejournal.com]

9/11 does not fall under the heading of hate crimes, but I am of the opinion that violent hate crimes fall under the heading of terrorism. I'm not aware of a legal test for terrorism, however. (iAnal!)

[starchy.livejournal.com]

I agree wholeheartedly about the "Victim Impact Evidence" rule. However, I must disagree about hate crimes. There is a substantial difference between targeting an individual as such and targeting an individual as a representative of a broader class. Spraypainting "Your ded fucker" on the house of an enemy tells everyone that someone in the neighborhood doesn't like the resident of #342, but spraypainting "Your ded fagot" sends the message that anyone gay should feel unwelcome and subject to violence when they're on Maple St.

It's the difference between killing your enemy and putting his head on a pike for everyone else in his village to see. It may not change the tragic reality of the underlying crime -- murder -- but it adds another layer to it of intimidation and terrorization of those who were not directly victimized. This is only true of isolated incidents, as well. As the frequency of such acts against any given class increases, what you have is systematic suppression of a minority, a la the Klan. Absent of any context, what's a burning cross or two, after all?

It might well be true that some crimes are mislabeled hate crimes (if a white woman kills a black woman because of a personal issue that has nothing to do with race, the punishment should absolutely be the same as if both were white), but that in and of itself does not strike me as a solid argument for doing away with the classification altogether.

[joreth]

The problem is in the use of the classification as a "hate crime".

Killing a person is bad to the degree of X.

Killing a person as a message to others is bad to the degree of Y, possibly more bad than X. Fine, the severity of the crime is worse, so the severity of the punishment is worse.

But what this classification system of hate crimes is usually used for is to punish someone for disliking a black woman's skin color more than any other reason for killing her.

As much as I might dislike it, there is nothing illegal with disliking black people. It's in their actions that it becomes important. I dislike Obama's religious beliefs. He doesn't believe that marriage between two men is valid. But he is putting aside those personal beliefs (he says) to fight for the civil rights of gay men to enter into civil contracts.

Hate crimes punish people more severely for their beliefs that go against the current politically correct belief system. The crime should be punished based on the severity of the crime, not the thoughts of the criminal.

[corpsefairy.livejournal.com]

Actually, the crimes are punished for the severity of the crime. The argument here is that a hate crime is a crime plus a threat, and while homophobia isn't illegal, threatening to do harm to somebody certainly is.

The idea here is not to punish people for their thoughts, but for the results of the crime. Lynchings are terrorist acts, and should be prosecuted as such, because they instill fear in certain, targeted groups of people.

Does that make sense? Perpetrators of hate crimes aren't being prosecuted for their thoughts; they are being prosecuted for deliberately increasing fear in a particular community, as well as for the crime itself.

[starchy.livejournal.com]

...and this is getting almost creepy.

[joreth]

If lynchings are terrorist acts, then why aren't they just prosecuted as terrorist acts? What is the point of adding a whole new classification of "hate crime" to it? That's what bothers me about this - we already have several categories of crime to deal with all the complications without adding elevating race or gender or whatever to a privileged class. We've had terrorists, we have gang violence, and we have organized crime, all of which deal with the intimidation factor that raises the severity of an act. The category of "hate crime" is unnecessary if/when these other categories are present and utilized.

Punishing a racist for a hate crime does not translate to other racists that the minority race is an equal human, it translates to the racists that the minority has special treatment and only furthers resentment of that race. By treating the victim of such a crime as the exact same as any other similar crime, I think we send a much stronger message that these minority groups are deserving of exactly the same privileges and benefits of the law.

If we're talking about using these criminals as examples to affect society, then I think the classification of "hate crime" is treating the symptom and not the disease and that the resulting treatment does not affect the change we want.

So, simply for punishing the guilty, the severity of the crime is what should be considered, and I think the classification of "hate crime" unduly punishes more severely crimes that have equal severity to non-hate crimes.

[starchy.livejournal.com]

When applied properly, hate crime statutes still punish the external realities created by those thoughts. It's still legal to hate jews, to think about hating jews, and to talk and write about hating jews. When you paint "kike" on the sign of a shop and break its windows, however, you have effectively committed two crimes: one of property damage and vandalism as it would be without the slur, and one of directly intimidating a class of people. It's not because you thought "I hate jews" while doing it, it's because your actions have that very real, additional effect. If you do this to several stores, you haven't just multiplied the value of property damage, you have committed a campaign of suppression against that community.

If the hate crime statutes become about thoughtcrime, then they are (in my view) being misapplied. What they're about, if used as intended, is the difference in the effect on outside reality between two crimes which otherwise fall under the same statutes. In the case of murder, it probably shouldn't often make much of a difference in terms of the actual sentence, which is already going to be quite severe, but in other situations it probably should have an impact. What would a burning cross be if we totally ignore context and meaning? Littering? A fire code violation?

We are in agreement that "the crime should be punished based on the severity of the crime, not the thoughts of the criminal." In many cases, however, the actual severity of a crime cannot be measured while ignoring the effect it is designed to have on the victim and that victim's community. This is not the same as VIE, either: it's the difference between attempted murder and assault.

[joreth]

We've had terrorists, we have gang violence, and we have organized crime, all of which deal with the intimidation factor that raises the severity of an act. The category of "hate crime" is unnecessary if/when these other categories are present and utilized.

I'm not suggesting we overlook the intimidation factor. I'm saying that intimidating gay people isn't worse, or even different enough to deserve its own classification, than intimidating anyone else, such as mob crime, terrorism activity, or gang violance. That the race or gender or orientation is the predominant factor rather than the actual act of violence, whether it's physical violence or emotional harm,is what bugs me.

[starchy.livejournal.com]

We've had terrorists, we have gang violence, and we have organized crime, all of which deal with the intimidation factor that raises the severity of an act. The category of "hate crime" is unnecessary if/when these other categories are present and utilized.

If hate crimes generally fell under one of these categories, you would have an excellent point. My understanding is that they rarely do, and this is a huge part of why the laws are valuable.

That the race or gender or orientation is the predominant factor rather than the actual act of violence, whether it's physical violence or emotional harm,is what bugs me.

I don't know that it is necessarily the predominant factor. But here's the thing: protected classes do need protection. The most reasonable assumption is that the rest of society and even the justice system itself is stacked against them, if only a tiny little bit in some cases. One way of trying to control for that imbalance is by saying that if you try to take advantage of it in connection with a criminal act, or if by that criminal act you increase that imbalance, the penalty will be stronger. As the original imbalance cannot be made to vanish overnight, if ever, it is important to work in safeguards against it.

[james-the-evil1.livejournal.com]

The "victim impact" deals are usually done AFTER innocence or guilt are decided, during the penalty recommendation phase of the trial.

Not disagreeing, just clarifying 'cause in your post it reads like they're part of the decision making process on that.

[joreth]

Then that's a flaw in my writing. My point is that it unfairly biases a jury to empathize with the victim above and beyond the simply fact that murder is wrong, it helps to dehumanize the offender, and it subtly implies that certain deaths are more important than others.

[james-the-evil1.livejournal.com]

I'm not disagreeing with your point :)
The guy who callously shoots a poor orphan city kid with no one to speak for him should get the same punishment as the wealthy suburban kid whose parents can trot out all the home videos & cry on the stand.

[alan7388.livejournal.com]

I think you miss the point. The reason for the hate-crime classification isn't about the perpetrator's mind-set, it's about the severity of the actual crime -- on its victims and the public.

For example, spray-painting CINDY + BILLY on the back of a synogogue, and spray-painting KILL ALL THE JEWS NEXT TIME, are identical acts of vandalism in that they will cost the same to repair. But the latter is much more severe in its impact on the victims and the safety and security of the community, so it is legitimately treated as a more serious crime.

To pretend that they are the identical crime with identical effects would fly in the face of reality. Good law follows reality.

[joreth]

I think perhaps you didn't see the comments where I explain that I'm not opposed to penalizing the effect of the crime in addition to the face-value effect ... it's that there are already categories that do (or should) handle this, such as how we deal with terrorists, gang violence and organized crime - all of which perform the same kinds of acts that, on the face are merely misdemeanors, such as spray painting is vandalism, but who have an added intimidation factor.

It's elevating a single class of people above the others that I have a problem with. It's saying "intimidating people is bad, but intimidating these people is worse" that I object to. Intimidation, fear tactics, assault, murder, these should all be equally reprehensible whether they're performed on a minority person or a white male (or whatever is not considered "minority" at the time).

[corpsefairy.livejournal.com]

What you are proposing is exactly what hate crime penalties do. I'm starting to think that it's the term you have a problem with, not the actual effects.

It's not elevating a single class of people; as Starchy pointed out earlier, it's protecting various classes of people. The vast majority of the time, hate crimes are perpetrated against minorities. If straight white males were threatened as a class, hate crime legislation would protect them too. But it doesn't really happen.

[skyeyedoc.livejournal.com]

I think you are all over-looking the principle of moving consideration of the discrimination-based crime into the federal system of justice. These laws came into being to insure that "local standards" could not perpetuate a climate of discrimination against specific groups within the society.

Just sayin'...

[corpsefairy.livejournal.com]

I don't see what point you're trying to make. Can you elucidate?