Terrorism & Hate Crimes: They’re Not That Different
It’s been fascinating to watch the right wing’s reaction to Monday’s bomb attacks at the finish line of the Boston Marathon. From jumping to conclusions about the perpetrator (must have been a Muslim, of course) to lambasting the president for failing to utter the word “terrorism” in his initial remarks on the attacks, our friends on the right can barely contain their blood lust So certain are they that the attacks in Boston were the work of “terrorists,” they fail to see how “terrorism,” as a crime, is strikingly similar to one of their favorite grievances: hate crimes legislation.
Let’s review. Our conservative friends don’t like laws against hate crimes because, so the theory goes, those laws punish people for their thoughts rather than their actions. As odious Town Hall blogger Jeff Jacoby wrote in the context of the Tyler Clementi/ Dharun Ravi case last year:
Hate crime laws–which intensify the penalty if a crime was motivated by bigotry against certain groups–have always been problematic. They amount to thought crime, cracking down on an offender with particular severity not because of his deeds, but because of his opinions. Yet since when is it the business of the state to sentence individuals to extra punishment because they hold views that are primitive or unfashionable?
And they’re right about one thing: Typically, hate crimes laws take actions that are already illegal–for example, vandalism, assault, battery–and increase the penalty for those crimes based upon the perpetrator’s motives. In other words: His (or her) thoughts.
Here in Illinois, for example, Section 12-7.1(a) of the Criminal Code of 2012 states:
A person commits hate crime when, by reason of the actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin of another individual or group of individuals, regardless of the existence of any other motivating factor or factors, he commits assault, battery, aggravated assault, misdemeanor theft, criminal trespass to residence, misdemeanor criminal damage to property, criminal trespass to vehicle, criminal trespass to real property, mob action, disorderly conduct, harassment by telephone, or harassment through electronic communications as these crimes are defined in Sections 12-1, 12-2, 12-3(a), 16-1, 19-4, 21-1, 21-2, 21-3, 25-1, 26-1, 26.5-2, and paragraphs (a)(2) and (a)(5) of Section 26.5-3 of this Code, respectively.
(Emphasis supplied.) Under Sections 12-7.1(b) and 12-7.1(b-5), hate crimes range from Class 4 felonies (for the first offense) to Class 2 felonies (for subsequent offenses), meaning they can carry penalties of anywhere from one to three years in prison on the low end (for a Class 4 felony), to three to seven years on the high end (for a Class 2 felony). See 730 ILCS 5/5-4.5-35 through 5/5-4.5-45.
So the thing that elevates certain criminal behavior from a misdemeanor to a felony, or from a lesser felony to a more serious felony, is the reason why the perpetrator committed the act.
But, hold on. There’s no criminal liability without the underlying act, so the perpetrator is not being punished for his (or her) thoughts. The perpetrator is being punished for acting on those thoughts. And you know what? There’s nothing unusual about that. In criminal cases the sentencing authority almost always considers the defendant’s mental state–his or her motivation, whether or not he or she acted maliciously, recklessly, or simply carelessly–in deciding what punishment to impose from a range of available punishments. Again, using Illinois as an example, judges sentencing criminal defendants to prison time are supposed to consider a series of mitigating and aggravating factors that are set out in Sections 5-5-3.1 and 5-5-3.2, respectively, of the Unified Code of Corrections. See 730 ILCS 5/5-5-3.1, 5-5-3.2. Many of those factors go directly to the defendant’s thought process at the time of committing the crime, including, for example, whether “[t]he defendant … contemplate[d] that his criminal conduct would cause or threaten serious physical harm to another” and whether “[t]he defendant acted under a strong provocation.” 730 ILCS 5/5-5-3.1(a)(2), (3).
And then there’s the right winger’s favorite criminal charge of all: terrorism.
(5) [T]he term “domestic terrorism” means activities that –
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended –
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States.
18 U.S.C. § 2331(5) (emphasis supplied). (Note that “international terrorism” is essentially the same thing, but occurs primarily outside the territorial jurisdiction of the United States. 18 U.S.C. § 2331(1).)
Well, I’ll be. Just like hate crimes, the only thing that elevates garden variety criminal acts to terrorism is . . . the intention, or motive, behind the act. You take any act that’s “dangerous to human life” and “is a violation of the criminal laws of the United States or any State,” and you add in the intent to “intimidate or coerce a civilian population” or to “influence . . . policy . . . by intimidation or coercion” or to “affect the conduct of a government” . . . and, voila! You’ve got yourself an act of terrorism.
So, it seems as though our conservative friends are okay with “thought crimes” when those thoughts involve, for example, malice, in the case of ordinary criminal conduct, or a desire to intimidate civilian populations or governments, in the case of terrorism, but not when those thoughts involve racism, misogyny, religious or ethnic bias, homophobia . . .
I guess some thoughts are more equal than others.