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Criminal Laws Matter (Even When They Can’t Matter)

March 24th, 2011 No comments

I’m using the word “matter” in two different senses, obviously. The point is that even an unconstitutional statute can “matter” in terms of the signals it sends out to the group who is the law’s target, even though it can’t legally matter.

In this week’s column, I explore the issue as it applies to interracial marriage and sodomy laws. The motivating event for the piece was the decision by a couple of Kansas legislators to strike a proposed amendment that would have removed the now-unenforceable ban against sexual intimacy by two people of the same sex.

Justice Kennedy’s admonition in Lawrence v. Texas is particularly apt here:

“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

That’s no less true when the law can’t be enforced.

On the Brink of Hate Crimes Law Protecting the LGBT Community

October 27th, 2009 No comments

Tomorrow, President Obama is expected to sign the hate crimes bill (smuggled into an essential military spending measure) that will, at last, extend the reach of protection to those attacked and seriously wounded or killed because of gender, gender identity, sexual orientation, or disability.

Before I offer an opinion on the measure, it’s worth pausing for a moment at the imminent passage of the first significant piece of federal legislation enacted on behalf of the LGBT community. Whatever one’s belief about the value of this law as opposed to others in the pipeline (or not) designed to address the community’s needs, it’s appropriate here to pause and offer thanks and respect for the advocates who worked tirelessly for this, including, of course, Judy Shepard. Of course, this had better not be the only thing the Obama Administration does, but I’ll leave that alone for today.

I’ve likely spent more time thinking about the wisdom of hate crimes legislation than is healthy. For a long time, I had trouble with it; to an extent, I still do. There’s something to the argument that violent crimes are just violent crimes; that, by trying to dig more deeply into impermissible motives, the prosecutor runs the risk of punishing conduct the law didn’t intend to target, or, worse, targeting conduct because of its speech content rather than the serious physical consequences it produces.

Sometimes, those offering these arguments aren’t doing so in good faith — they oppose only this hate crimes bill, but not protecting victims of crimes committed because of race, religion, or national origin. Sorry, but given the prevalence of anti-queer (and I’m using the term advisedly here) violence, this is just a specious assertion: If anyone needs hate crimes protection, it’s the most outrageous gender “outlaws.” Even more “mainstream” gays are targeted at a rate that’s high even among despised groups. Worse, the LGBT community is the victim of a great number of the most serious cases.

Some, though, make the principled  conservative case against hate crimes law. Andrew Sullivan is prominent among these. (He’s addressed the issue on many occasions, but particularly persuasively, on what are really philosophical grounds,   here.) But I’m less concerned about the metaphysical basis of “hate” than he is. Instead, I look at the situation this way: What we (collectively) are saying in bumping up the penalty for a crime against a protected group is that: (1) Words can’t be punished in themselves, but when those words are linked to criminal action, they become something else; and (2) That “something else” is sufficiently upsetting to the community that we want to both stand with the victims and send a message to the those who might engage in similar behavior.

The trick, of course, is to use the words to prove a heightened degree of criminality. But the fact that we’re using words instead of some other indicator of intent shouldn’t be dispositive, unless one is willing to cling to the obvious fiction that we can never punish anything related to “words.” We punish fraud, defamation, and “fighting words,” to name a few. And words are routinely used to define crimes, and to establish motive and intent.

Once that’s out of the way, then we’re in familiar territory: Deciding how culpable particular acts are. And these are judgments we make all the time. Here is David Gibson:

“[T]he law is full of degrees of criminality. Premeditated murder is not viewed in the same way as a crime of passion, just as rape is treated as an especially heinous type of physical attack that is meant to degrade a victim, and so is deserving of appropriate penalties….

“[T]hese attacks can inflict [damage] on an entire community. Just as a serial rapist on the loose sows fear among all women (and their families) and curbs their freedom, so too a hate crime “is meant to terrorize a community, not solely to victimize an individual,” as Judy Shepard, the mother of Matthew Shepard, put it.

“If blacks or Jews or Latinos or Christians — or gays and lesbians — cannot live in a neighborhood or walk the streets without fear of attack, then that climate of fear inhibits the free and full functioning of individuals and society. Laws not only make penalties to inflict on perpetrators who violate societal norms, they also make a statement about what a society values.”

This is pretty good. It’s also, I think, an answer to the charge that hate crimes perpetuate the victimization of the named group. The better argument is that, properly implemented (but will they be?), these laws send the strong message that victimizing Group [N] isn’t tolerated. Over time, this signal can diminish the anti-gay (and other) violence it seeks to address.

I did say earlier that I’m not fully comfortable with hate crimes laws. Although I agree with the Supreme Court that any ‘chilling effect’ on constitutionally protected speech is so minimal as to be of little concern, I do have a concern about prosecutors and jurors becoming overzealous (but this is likelier, I’d bet, with crimes based on almost anything other than sexual orientation or gender identity.) And if there is this tendency to prosecute for political gain, then we can expect the scapegoats to be poor and uneducated people, especially those on the extreme margins, such as transgendered persons of color.

Thus, some radically left groups oppose hate crimes laws, too, and find unexpected common ground with the more conservative voices in the LGBT movement. Here is an especially strong statement of this critical position, expressed by the Sylvia Rivera Law Project in opposition to a proposed New York State bill that included hate crimes protection:

“Hate crime laws are an easy way for the government to act like it is on our communities’ side while continuing to discriminate against us. Liberal politicians and institutions can claim “anti-oppression” legitimacy and win points with communities affected by prejudice, while simultaneously using “sentencing enhancement” to justify building more prisons to lock us up in. Hate crime laws foreground a single accused individual as the “cause” of racism, homophobia, transphobia, misogyny, or any number of other oppressive prejudices.

“Anything that expands the power of a system that damages our communities so severely is against our long-term and short-term interests. Any legal weapon that’s created to make our justice system more harsh and punitive cannot be trusted in the hands of institutions that have shown their prejudices and corruption time and time again.”

Read the full Sullivan article against this letter, and find yourself asking whether the costs are worth whatever benefits might accrue. Reasonable people might disagree.

Vigilante Justice, Continued

June 19th, 2009 No comments

According to an article on philly.com (which hosts both the Inquirer and the Daily News), vigilante justice is OK with the prosecutors and the police — sometimes. The story details the prosecution of a man who beat another guy who’d allegedly raped his 14-year-old niece. The uncle who did the beating, Antwione Hough, has been charged with a series of crimes and forced to spend some $10,000 in bail and court costs.

As they used to tell us in Social Studies class: Compare and contrast the case of the Kensington mob who so severely beat up on a rape suspect in a different case that the alleged rapist was sent to the hospital. The mob’s punishment was a reward in excess of $10,000. (Actually, only two of the men received the reward; a shame there wasn’t more to go around, I guess.)

Confronted with this apparent inconsistency, the DA declined to comment. Police Commissioner Charles Ramsey said this:

“I think you have to look at what’s reasonable in terms of actions taken by members of the public. If an individual is wanted by the police for a felony, and you restrain him, how much force is too much? Every case is different.”

So we’d decide whether the attackers had acted criminally by  looking at the level of violence used. That statement is in conflict with another official statement on the propriety of citizen violence, made in connection with the case that didn’t result in prosecution:

“They don’t have a use of force continuum out there.”  (Translation: They  can do whatever they think they need to.)

This earlier statement was made by, um, Police Commissioner Charles Ramsey.

Thus is the peril of vigilantism laid bare. It seems that the DA and the Police Commissioner respond based on the politics and the community sense of outrage in a particular case. But that’s not how it’s supposed to work. And the fact that a poll taken in connection with this same story showed that almost 2/3 of those responding favored vigilantism only cements the point: Many have the instinctive sense that something much be done. But as I’ve argued, lawlessness breeds more of its kind.  If those charged with enforcing law can’t be trusted to act consistently and neutrally, we shouldn’t be surprised if vigilantes are emboldened. But their actions are judged by the whim of the prosecutor.

Where is Mayor Michael Nutter in all of this? He supported the vigilantes in the Kensington case. I’d be tempted to say that Nutter might have decided differently had he attended law school, but legal training doesn’t appear to have benefited the DA in this case.

The Hierarchy of Lawlessness

June 10th, 2009 No comments

Let’s play a depressing game. Consider these stories, and spot as many cases of lawlessness as you can:

  • As I wrote about a couple of days ago, a Philadelphia mob attacked and severely beat a rape suspect. The actions were condoned, encouraged, and rewarded by city officials. In this piece, Columbia University Professor Marc Lamont Hill attempts to justify the mob’s actions by noting that black women can’t count on the criminal  justice system to vindicate their interests.1
  • In the wake of the killing of Dr. George Tiller, who ran one of only three late-term abortion clinics in the country (now two, as his clinic is closing), Dr.  Susan Hill, a friend of the late Dr. Tiller’s and President of the National Women’s Health Foundation, appears on the Rachel Maddow show and says that the police often do not protect women who seek late-term abortions when they are harassed by anti-choice nuts. Apparently, the Freedom of Access to Clinics Entrances Act (“FACE”), the federal statute that allows both the U.S. Attorney General and any aggrieved person to sue for acts of violence or intimidation, isn’t doing enough to stem this misplaced zealotry, either.  Dr. Hill also states that the level of violence and intimidation has spiked since Dr. Tiller’s death, but also notes that federal marshals are on the ground to safeguard women’s safety. (The linked video is worth your time.)
  • This compelling story from the latest ABA Journal: In 1909, a black man is convicted of raping a white woman despite overwhelming evidence of his innocence. (Stop me if you’ve heard this before.) The judge essentially orders the convicted man’s attorneys not to appeal his death sentence. Other attorneys do step in and appeal, eventually filing a petition for habeas corpus in federal court, challenging the detention on constitutional grounds (including the right to a fair trial). The petition is denied in the lower court, but the court also stays the defendant’s execution pending appeal. When Supreme Court Justice John Harlan allows the appeal, an angry mob — enabled by the local sheriff — lynches the poor man, and shoots him “just in case.” The Supremes then host their one and only (still!)  criminal trial, eventually finding the sheriff, a deputy, and several mob members guilty of contempt of court. All are sentenced to (ridiculously brief) jail time, but are greeted as conquering heroes upon their return to their home town of Chattanooga, Tennessee. Meanwhile, the black lawyers who took the appeal, fearing for their lives, are forced to relocate.
  • The U.S. Government tortures enemy combatants, then protects those who ordered the torture. Congress attempts to strip the detainees of their habeas corpus rights, but the U.S. Supreme Court, in Boumediene v. Bush,  strikes down the law, finding that the procedures in place to challenge their detention were insufficient as a matter of due process.

Lawlessness isn’t limited to angry mobs. But such vigilantes are emboldened, and given example and cover, when those charged with enforcing the law — from renegade juries, prosecutors and law-enforcement officials to elected officials, to judges who forget their  role in the constitutional design, to legislators who pass laws they should know are unconstitutional — fail to do their jobs.

The above stories suggest a scary lattice of lawlessness. Violent anti-abortion protesters who aren’t arrested and prosecuted for breaking the law encourage others, equally or more violent. The stranglehold of Jim Crow racism was almost impossible to break given the lawlessness of public officials; it took the Supreme Court to create (admittedly crummy) accountability.  The Philadelphia mob will spawn others, because the message from the city is clear: “We’ll look the other way.” And only the Supreme Court, by the narrowest of 5-4  margins, stood between Congress and the further erosion of our Constitution when it comes to our treatment of detainees.

Maybe it’s the pervasiveness of this outlaw mentality that explains Marc Lamont Hill’s attempt at justifying the mob’s actions last week. Here’s what he had to say:

“I…have no antipathy toward the ghetto kangaroo court that sentenced him to a thorough ass-whooping. Still, I remain wary of hasty rushes to judgment (and punishment) regardless of the circumstance. After all, it was the ostensible need to quickly avenge rape that led to the physical and juridical lynching of thousands of black men throughout history. Also, if the racial tables were turned, we would surely disapprove of a white mob beating a possible black rapist. Black and white, however, are not two sides of the same racial coin.”

Hill then goes on to cite compelling historical and sociological evidence of the law’s failure to regard the black female body as worthy of protection. He then concludes:

“In a perfect world, law enforcement would be enough. Unfortunately, we live in a world so fractured by racism and sexism that black female bodies are still rendered unimportant. On Tuesday, the neighbors decided to send a different message. Until the broader society gets it, the community’s brand of justice is both appropriate and necessary.”

There’s so much wrong with this argument that I hardly know where to start. First, even if (as we must concede) the criminal justice system is flawed, that does not mean that the mob justice he champions is better. The mob had already attacked the wrong guy before they fingered this one. Is it OK if they’re wrong? If not, how does he know that the guy  they did beat is the right one? Because the very police he doesn’t trust said so?  And how far would he let the mob go? This alleged rapist was hospitalized. What if he’d died? Would that have been OK, assuming the same level of force was used?

None of these pedestrian concerns appear to have occurred to Hill, who practices being provocative on FOX News. Nor does he appear to have thought through the implications of excusing criminal behavior based on the race of the parties involved. Saying that “black and white are not two sides of the same racial coin” is sound-bite ready, but what does it mean? More to the point, what might that statement justify? Lawlessness isn’t so easily cabined, once unleashed and condoned. He’s “wary” of this kind of behavior? So what?

Batman is pretty cool as a comic book character (although I always preferred the less complicated Superman as a kid), but a nation of lawless zealots who “know best” and their academic and official enablers is less appealing.

  1. h/t Kris Kachline for alerting me to this article.

Vigilante Justice OK in Philadelphia

June 8th, 2009 2 comments

An eleven-year-old girl was brutally raped here in Philadelphia last week. The details hardly matter to the heinousness of the crime, but surgery was required. When the suspect was cornered by a couple of local guys who identified him from a news report, he was “held” for the police. At least that’s the description that was given by Philadelphia Police Commissioner Charles Ramsey, who has so far decided not to press charges against any of these vigilantes, who beat the man so badly about the head that he, too, was hospitalized. Here’s the AP’s story:

“We don’t condone violence”?? By declining to press charges, that’s exactly what Ramsey is doing, his blather about “a use of force continuum” notwithstanding. I think everyone knows that, whatever the niceties of the limits of permissible force, “pummelling a man for several minutes” exceeds them. The Fraternal Order of Police President John McNesby was at least honest: “He got what he got.” And two of the attackers also “got” to split a handsome reward for their actions: Almost $6,000 each. McNesby forthrightly stated that “there wasn’t even a second thought” about giving this award. I wonder if the two men were chosen based on the level of injuries inflicted on the suspect.

In this story, Ramsey offered this additional justification for the mob’s actions: “You have to think about the emotion involved in this.”

But that’s exactly why charges should be filed, if appropriate investigation and evidence so warrant. As a parent, I would also want to tear this creep apart. That’s why we are a nation of laws, where even understandable emotional responses are punished if criminal. What if the mob had killed this guy? Would the commissioner take the same position? But it might only be a matter of luck that he was “only” hospitalized and not killed. It’s precisely for those cases where the temptation towards vigilantism is greatest that the criminal law system is most needed. Otherwise, we can expect the next case to bring a Clint Eastwood level of unchecked retribution.

And the thirst for summary justice can even be slaked against the wrong guy. In this case, one of the vigilantes apologized to another man who was mistakenly beaten, in what I’m sure  the police commissioner will regard as an understandable exercise of “citizen’s enthusiasm.” At least the mob got to hone its technique before using it on the true rapist. At least let’s hope they picked the real criminal this time. If not, perhaps the third time will be the charm.

None of this is to say that the emotional component can’t be taken into account. This is a proper consideration in a number of places throughout the criminal law system, including: which charges are brought (the law distinguishes between different levels of culpability); the jury’s ability to find guilt on lesser crimes where circumstances warrant; and the judge’s discretion in sentencing. But declining to bring charges at all sends a terrible message: Those charged with enforcing the law will ignore it when politically expedient.