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August 23, 2007


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Frederick Hamilton

Prof Stone,
Agree with you that to oppose such legislation on 1st Amendment grounds does seem pretty lame. I have a problem with classifying crimes against all of humanity on grounds other than the crime itself. A murder is a murder. An assault is an assault. It takes an equally hateful attitude to do to anyone what someone might do for "hate" reasons. Would you favor the death penality for these hate crimes if murder was the outcome as in the Matthew Shepard case?

Also, should not the crimes being perpetrated on American citizens by illegal immigrants (M13 gang members for instance) as just took place in Newark be considered hate crimes?

Should there be culpability by sanctuary cities in these illegal immigrant obvious hate crimes?

Likewise shouldn't the government that allows illegals to remain free after previous felonies and walk the streets of America to prey on innocents only to commit more hate crimes as in Newark be culpable also?

I could favor the Matthew Shepard Act if it allowed for capital punishment and included a tightening of the screws on illegal immigrants committing felonies in our country. Where is our sanctuary from the illegals preying on us? That to me is also a hate crime.


"Where is our sanctuary from the illegals preying on us? That to me is also a hate crime."

Huh? The term "hate crime" is defined in the proposed legislation as an act that is motivated by "that person’s race, color, religion, national origin, gender, sexual orientation, gender identity, or disability". Can you demonstrate that, in general, crimes by illegals against citizens are motivated by any of these factors?

I suspect that you're playing fast and loose with the term "hate crime".


Serioulsy Frederick. I like you, but you've got to check yourself sometimes.


Where is our sanctuary from the illegals preying on us?

I try living in the real world. You might consider doing so yourself. I mean, seriously -- there are 270 million of "us" and 13 million of "them" (by the most histrionic of the propagandists' estimates). I think "we" can take "them." Oh Noes! Some "illegals" were committing violent crimes! No AMERICANS ever do that! Whatever will we do?!? [eyeroll]

Hate crimes are no different in effect than crimes committed against other specified groups of people. Assaults against police officers are separate crimes than assaults against civilians. Assaults against children (and, in some states, the elderly) are separate crimes than assaults against adults. Assaults against one's spouse are treated differently than assaults against a stranger. Hate crimes bills simply say that assaults against a person who is a member of an historically oppressed group -- with a specific, additional intent requirement that the assault be based on such person's membership in such group -- is treated differently than assaults against people for other reasons or for no reason at all. This bill should not be a threat to anyone who intends to live peacefully with fellow members of a pluralistic society.


"[T]he Court emphasized that the government has a perfectly legitimate interest in punishing 'bias-motivated crimes,' because such crimes are especially likely to inflict emotional harms on their victims, incite community unrest, and provoke retaliatory violence."

Which is specious reasoning. The First Amendment may not be offended by hate crime legislation. But I am. I'm offended by any acts of the Thought Police, whether they be by way of censorship, involuntary outing, or enhanced penalties for particular motives.


YLlama, you do not believe that motivation should be considered in evaluating the seriousness of the crime? Consider these examples:

1. One man steals computers from homes to pay for medicines for his child. Another steals computers from homes to pay for his drug habit. A third steals computers from homes for the thrill of it. They should all be punished equally?

2. One white man, drunk at a bar, gets in a brawl and beats up a black man at the bar. Another white man mistakenly thinks that a black man was trying to steal his car and beats up the black man. A third white man beats up a black man because he hates blacks. They should all be punished equally?

On this point, I think you're far from the middle of the road.

Frederick Hamilton

The point is not that we outnumber the illegal aliens. The point is that we are supposed to be a nation of laws. And yes, where is our sanctuary from them?

Yes, I agree, it is something of a stretch to equate illegal alien gangs preying on society as hate crimes, but not by much. That is the slippery slope of "hate" crimes.

Where is the outrage about the three black college students being executed in Newark and why can't their death be as momentous as Matthew Shepards? At least two and maybe three of the executioners were illegal gang members already known to have committed horrible crimes and out on bail and not deported and taking advantage of police that don't report their status and taking advantage of "sanctuary" cities and states.

I am sorry but Matthew Shepard, Terence Aeriel, Dashon Harvey, and Iofemi Hightower were all victims of hate crimes.

This is a law blog. Why are those taking oaths to uphold our laws not doing so? I would think the flouting of our immigration laws would have ethically honest lawyers going bonkers. How can you square police officers being told to ignore the legal status of a law breaker with your respect for the law? I can't and don't.

Illegal alien gang members are hate crime specialists and deserve to be part of the Matthew Shepard, Terence Aeriel, Dashon Harvey, and Iofemi Hightower Act.

Frederick Hamilton

The M13 gang members in southern California are known to have started ethnic cleansing against blacks and hispanics outnumber blacks in most of southern California. Is their approach to black Americans ethnic cleansing hate crimes? Is their approach to crimes upon white Americans hate crimes.

Frederick Hamilton

Sorry should have said "M13 illegal alien gang members"

George Liebmann

The article is profoundly misleading, and taken together with Prof. Stone's recent comments on the abortion case unfortunately does much to discredit his more sensible views on emergency powers. These latest expressions have everything to do with identifying with advocacy groups on ephemeral 'pop issues' and nothing to do with maintaining constitutional government.

The hate crimes bill is not merely a replica of a state law upheld by the Supreme Court, and Prof. Stone knows it. It drastically dilutes the requirements of specific intent to deprive of a federal constitutional right imposed in Scrwews v. United States, and Prof. Stone knows this. The best argument against it is that supplied by Justice Douglas in his opinion for the court in Screws, and by Justices Jackson, Frankfurter and Roberts in their separate opinion. See the oped piece below.

Nationalizing Crime
by George W. Liebmann

The endorsement by the Washington Post and too many ‘liberals’ of the proposed ‘hate crimes’ bill exists in strange juxtaposition with recent articles and editorials on the U.S.Attorneys scandal revealing the abuse and over-centralization of the existing system of federal law enforcement. The significance of the proposed bill is not found in the ludicrous ‘log-rolling’ leading to the inclusion of women and the disabled as well as ‘gays’ as new categories of protected persons, but rather in its dilution of constitutionally mandated requirements of criminal intent, which would potentially ‘federalize,’ or rather nationalize, almost all crimes of violence and associated words .

The dangers of this sort of vagueness are why the Supreme Court in 1812 refused to allow federal courts to define ‘common law crimes’ since the ensuing body of law would be "much more extended" and "in its nature very indefinite." "Behind the decision", according to one historian, was:

the concern that nonstatutory crimes would not be defined with sufficient particularity and could be made instruments of political repression...In retrospect it is obvious that the common law of crimes was a potent political weapon wielded by the party in power against its opposition...political leaders could and did use the doctrine of common law crime to stifle the opposition press and perpetuate themselves in office.

Both the Roosevelt court in Screws v. United States and the Warren Court in United States v. Guest stated that the federal criminal civil rights laws would be unconstitutionally vague unless circumscribed by specific intent to deprive a victim of a federal constitutional right. Without this, Justice Douglas said in Screws, the law " lacks the basic specificity necessary for criminal statutes under our system of government " Justices Frankfurter, Jackson and Roberts further cautioned that even as limited, the statute has dangers:"a ‘policy of strict self-limitation’ is not accompanied by assurance of permanent tenure and immortality of those who
make it the policy. Evil men are rarely given power; they take it over from better men to whom it had been entrusted. There can be no doubt that this shapeless and all-embracing statute can serve as a dangerous instrument of political intimidation and coercion in the hands of those so inclined."

This supplies sufficient answer to the weasel words in the hate crimes bill about consultation with states. The obvious dangers to free speech which gave rise to Jefferson’s successful opposition to federal common law crimes are also present in the ‘hate crimes’ bill, and are revealingly sought to be avoided by statutory exceptions which must be invoked and proven by defendants. Prosecutions under the bill would thus involve a witches’ brew of controversial questions.

This “hate crimes” bill should be held up to law students as a model of bad draftsmanship, and any presidential candidate of either party voting for it should be deemed disqualified thereby.

George Liebmann, a Baltimore lawyer, is the volunteer Executive Director of the Calvert Institute for Policy Research and the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books, 2005).


© 2007 American Conservative Union Foundation 1007 Cameron Street, Alexandria, VA 22314 Tel: 703.836.8602


Frederick, hate crimes, as you well know, have to do with the status of the victim and the intent of the criminal to attack the victim because of that status alone. So one gang atatcking another, even if they are of differnent ethnicities, isn't going to hack it as they are attacking each other not because they are black or latin but because they compete with each other over criminal enterprise. Either is classifying all violence perpetrated by illegal aliens going to hack it for reasons that should be clear to even you. Stop being such a douchebaggins.


Hopefully the conservative pastors are genuinely ignorant of the law and not against the legislation because it protects homosexuals from acts of violence. The righteous anger of fundamentalists is sometimes a thing to behold...


Mr. Hamilton, I am surprised that one participating in a law blog would take such a cavalier attitude towards a legal term such as "hate crime". I am further surprised that you would use the grossly inappropriate term "ethnic cleansing" in reference to gang warfare. Please, your comments would be more useful if you strove for more precision in your terminology.

Let's remember that the core point of this piece concerns the objections of fundamentalist Christians who incorrectly fear that their vicious attacks on gays will fall afoul of this law. Nevertheless, I think that Mr. Liebmann has a good point in regard to states versus the federal government. This is a problem to be attacked at the state level, not the federal level. I would prefer to see identical laws passed in each state.


Mr. Liebmann,

What are the "obvious dangers to free speech" that "are also present in the ‘hate crimes’ bill?"

George Liebmann

Read the statute. The prosecution must establish that the violent act took place "because of actual or perceived religion, national origin, gender, sex orientation, or gender identity." In other words, it must prove motive, not merely intent. How is it to do this if not by reference to verbal expressions, or associations of the defendant? The statute says that these can't be used unless they "specifically relate to the offense", whatever that means, except this bet is off if the defendant is so bold as to explain himself from the witness stand, which he has a constitutional right, and frequently a necessity to do, in which case all sorts of prior verbal statements critical or reflecting on groups or members of groups may be adduced by way of impeachment. In short, the critical issues at the trial, that greatly aggrevate penalties as well as imposing double jeopardy, involve the expressions and associations of the defendant, not whether he committed the violent act and was lucid when he did so. I don't think that's what the criminal law should be about. I don't think trials should be about whether a defendant is a nice person, or whether one or more jurors are offended by what he said. I think guarantees of double jeopardy should be real, not theoretical, not subject to nullification on the demand of noisy advocacy groups. I do not envy the prosecutors who must try these cases, though they will have the aid of demagogues, nor do I envy the judges who must select juries and protect them from unduly prejudicial testimony. This act could not be better calculated to politicize federal criminal justice in almost all its aspects, and to further intrude the federal government into policing violent crime, not merely post hoc investigation. How anyone who cares about civil liberties can welcome trials with the focus of these passes my understanding.


George you seem very confused. Speech is used as evidnce to prove crimes in the normal course of law enforcement. It has no more affecton free speech than asking a murderer why he did it. You don't know what "specifically related to the offense" means? Seriously? 1. That there has to be an offense other than speech, and 2. that the speech must be related to the underlying action that was the casue of the crime and which is distinct from that speech. Speech is used all the time as evidence of crimes, and here if there is hatefull speech that is specifically tied to an underlying tort, it can be used as evidence of a hate crime. I see absolutely no problem with that from a 1st amendment persepctive.

And Double Jeopardy? Huh? WTF are you talking about?


Mr. Liebmann,

I am somewhat perplexed by your explanation. First off, there is nothing in the First Amendment jurisprudence that bars consideration of the defendant’s motive. If there were, a good chunk of the investigative and prosecutorial work would be tossed out of the window. Second, if your concern is that the defendant may incriminate himself by taking the stand and opening himself up to cross-examination and admission of hearsay evidence, then that’s just part of any criminal trial process. Defendants always testify at their own peril and competent counsel typically do not allow unsympathetic defendants anywhere near the witness box unless there is a benefit to be derived from it. It’s the same old cost-and-benefit analysis game, you know. There is nothing that sets the hate crime bill apart in this regard. I am also having hard time seeing the connection between the First Amendment and your opposition to the trial involving “expressions and associations of the defendant.” I assume you wouldn’t argue that inferring criminal intent from someone’s relevant prior acts and words is perfectly legitimate and I assume that you won’t take issue with the law of conspiracy and a whole host of white collar crime statutes, all of which hinge to a greater or lesser degree on the defendant’s prior dealings, associations and communications, as violative of the First Amendment. Finally, the alternative that your propose - that the trial be about “whether he committed the violent act and was lucid” - is somewhat disingenuous, don’t you think? Are you implying that ‘intent’ should not be made an element of the offence and that the only issues that can be decided at trial is the actus reus and the defendant’s mental competence?


Erasmussimo wrote:

"1. One man steals computers from homes to pay for medicines for his child. Another steals computers from homes to pay for his drug habit. A third steals computers from homes for the thrill of it. They should all be punished equally?"

What's wrong about theft? It is the owner's being deprived of the use and enjoyment of his property. The computer owner is equally deprived in all three cases, so I would say that yes, all other relevant things equal (i.e. approximate value of the property taken, prior criminal history, etc.), each should be punished equally. If anything, the third person should be punished least, because he is the least likely to have irrevocably converted the computer to his personal use by untraceably selling it.

"2. One white man, drunk at a bar, gets in a brawl and beats up a black man at the bar. Another white man mistakenly thinks that a black man was trying to steal his car and beats up the black man. A third white man beats up a black man because he hates blacks. They should all be punished equally?"

I'm not saying frame of mind is irrelevant to whether and what penalty to impose. The mens rea is obviously a very important part of a crime. I'm not sure from each of your examples whether the white man formed the specific intent to assault the black man. Moreover, the second example may provide a complete or partial defense, depending upon whether the white man's presumably mistaken belief that the black man was trying to steal his car was reasonable. But, all other things equal, if each white person's action rises to the level of indefensible assault, each should be punished similarly.


YLlama, all I can say is that your thinking on this issue is wildly at variance with the philosophy of law that has been established over centuries, in which the motive of the accused is considered to be of primary importance in determination of the punishment. Indeed, some crimes are differentiated exclusively by motive. I know that this has been the case in English common law for centuries, and I think I recall similar provisions in Roman criminal law. I'll grant you this, however -- Hammurabi's laws made no distinction based on motivation.

George Liebmann

Why are these responses to my signed comment posted under the cloak of anonymity? Who are you? Why are you ashamed to sign your statements?

LAV's comment proves my point that the supposed exclusion of speech and association as evidence included in the Senate bill is meaningless window-dressing. It is true that speech or association can be evidence in normal prosecutions. My point is that the nature of the 'hate crime' offense renders them virtually the sole evidence. It is the defendant's opinions and associations that convict him

LAK's comment about double jeopardy suggests that graduates of the post-Stone generation know or care nothing about federalism. It is true that because of Bartkus and Abbate that successive state and federal prosecutions do not constitute double jeopardy. It is also true, as a host of commentators on those cases have recognized, that the practical effect of a second prosecution is to deny the defendant the protection that the double jeopardy clause was supposed to afford him. This is especially the case where the federal statute is founded on no serious independent federal interest. Upon enactment of the statute, any acquittal of a police officer accused of improper use of physical force can potentially be met with demands for federal investigation or prosecution if his victim is part of the 80% or 90% of the population potentially belonging to one of the protected groups--all women, all blacks, all foreign born, all 'gays' or disabled persons, all Catholics, Jews, Moslems, etc. The costs of defending federal criminal cases are such that the effect is to give federal prosecutors the whip hand over state and local police practices if such a statute were available. This is the concern that influenced Justices Douglas, Frankfurter, Roberts and Jackson in their opinion in the Screws case. Do you entertain the notion that federal law enforcers are inevitably benevolent? This is not the impression Justice Jackson had after his return from Nuremburg, as to which see Philip Kurland's biographical sketch of him in the Friedman and Israel volumes of biographical sketches of justices of the Supreme Court.


Mr. Liebmann,

It is not “defendant's opinions and associations that convict him,” it is the act of violence that he or she commits with a forbidden motive that convicts him. Mr. LAK’s post demonstrated the point clearly. Defendant’s expression and associations may furnish proof of his motive. Just like they supply evidence of a defendant’s specific intent to aid and abet in a commission of robbery or of his engagement in a price-fixing scheme. You seem to be conflating “expressive conduct” and the use of the defendant’s speech to prove an element of an underlying non-speech offence. The First Amendment protects the former and the bill says just that; the latter is fair game in all prosecutions and a hate crime statute is no exception. There is no issue of window-dressing in the bill.
Hate speech is protected; a hate crime is not because it is not speech and has no relevance to First Amendment values. The defendant’s “freedom of speech” is simply not “abridged” when his shouting racial slurs before and while beating up a black stranger gets him convicted of a hate crime. Lynching someone is not speech, so let’s take the First Amendment out of the picture here.

Using one’s initials, pseudonyms or other tools of anonymity has nothing to do with shame. This board is about a reasoned debate, not who the debaters are. By the way, your name still doesn’t tell me who you are and that’s fine with me. I really don’t need to know your identity to be able to read and respond.


My impression (based admittedly on almost total ignorance of the issue other than the experience of having been around during the 60s civil rights era) is that federal prosecution of offenses traditionally prosecuted at local levels was originally motivated by the failure of some local jurisdictions to prosecute effectively what came to be called "hate crimes". Ie, in essence there was no "double jeopardy" because no real jeopardy attached to the local prosecution, assuming there was any.

So, my question would be what the motivation for creating a federal offense re gay bashing is. I have no knowledge of the details, but in a state not known for its extreme radical liberalism the murderers of Matthew Shepard appear to have been punished to a degree that might not satisfy some but doesn't amount to getting pass.

BTW, I have no posiion on the issue. Just asking for inputs.

As to the question of blogger anonymity, I don't think it's a matter in most if any cases of being ashamed of anything. Speaking for myself, I adopted "ctw" originally out of habit - one identified oneself to multi-user computers, e-mail accounts, etc with typically cryptic login names, and blogs seemed analogous. Now I see the relative anonymity as playing the interesting role of being a leveler - one's identity is totally defined by one's words which convey most of what other blog readers actually need to know about you, unadorned by credentials, sex, ethnic identity, etc. Speaking for myself, in the unlikely event that anyone cares about any of that, I stand always willing to "reveal all".

- Charles

George Liebmann

Let me point the moral once more. One of the objections that Prof. Stone, and Prof. Zechariah Chaffee and others, including Harry Kalven, raised to the Smith Act and similar state laws was that they made politics the gravamen of the offense, instead of a particular violent act. The criminal law is supposed to be reserved for acts that excite the general abhorrence of the community, not merely that of a particular class or interest group. The same is true for penalties under the criminal law. With the hate crimes law, an aggrevated assault upon a member of class X is punishable by 5 years; if a member of class Y is assaulted, and his assailant receives five years, a clamor will now arise for him to be reprosecuted so he can receive 15 years. This will not impress X and his friends as fair or sensible.

Let us press things one step further. Under the bill, Matthew Shepard's unorganized and uneducated assailants are open to aggrevated penalties. If an organized group, an American Baader-Meinhof Gang, undertook to systematically assassinate prominent industrialists, no hate crime penalties would apply. The same would be true if an American group, like the Italian Red Army Faction, engaged in a program of assaults on officeholders associated with a major political party. Why is the first offense a hate crime, and the second and third not? Is it rational to have a 'hate crimes' statute directed onl;y at hate criminals of the right, not those of the left? Is this not calculated to bring the law's professions of neutrality into disrepute?

Finally, I find it hard to understand how the statute can be read as doing anything other than federalizing all rape prosecutions. Clearly they are within its definition of gender-based crime. What sense does this make? Rape is a heinous crime, punished as such everywhere. It is also characteristically committed by isolated losers, not combinations that are a danger to the national state. What is the justification for federalization? And how many disabled persons are attacked because of prejudice against the disabled, and how many states fail to adequately punish them? And what makes Congress a better or more representative judge of state penalties than state legislators. Is the Federal Sentencing Commission and its draconian penalties a reflection of some moral advance?

The statute is prompted by no felt need. It is a cowardly and demagogic pandering to advocacy groups, who are now thrown pieces of the federal criminal code in the way that seals are thrown fish at feeding time. This would be amusing, were not its effect loss of public confidence in equality before the law and aggrandizement of the power of a federal policing and prosecutorial establishment that is increasingly more centralized, is unelected, and is increasingly immune from political accountability.

Frederick Hamilton

The point of the "ethnic cleansing" by the illegal alien M13 gangs against blacks in California is not gang against gang violence, it is the killing of blacks by gangs because they are black.

The illegal alien gang members in New Jersey didn't commit gang on gang violence, unless you consider the four young black college students to constitute a "gang" of good kids aspiring to get out of Newark to a better life.

The "ethnic cleansing" the M13 gang is accused of is indicative of killing non-gang blacks in southern California. Ethnic cleansing was not my term, it comes from the authorities in California.

I thought ethnic cleansing represented the quintessential hate crime. Sorry, guess I was wrong.

So once again, where is the outrage by lawyers regarding law breaking illegal immigrants? Where is the outrage of lawyers regarding "sanctuary" for law breakers? Doesn't square with our nation of laws. Some sanctuary police departments don't ask don't tell policy regarding illegal immigrants appears to have gotten three good black kids killed. The black community should be outraged.


Mr. Hamilton, "ethnic cleansing" refers to the clearing of entire regions of members of one group by members of another group, often accompanied by murder of some victims. So, I put the question to you: have these gang members been demanding that blacks leave the region? Have they engaged in killing large numbers of people?

The fact that these crimes are heinous does not mean that you are free to misappropriate terminology. This is not a Holocaust, nor is it genocide, nor is it a massacre. It's a small number of heinous crimes. Wild-eyed hyperbole does not help clarify the issues.

You wonder where the outrage is. I remind you that there are dozens of murders in this country every day. Where is your outrage? Why aren't you here every day, decrying the deaths of all those people?

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