What is a Hate Crime and why should it be punished differently than a normal Crime? I’ve previously discussed why we should not speculate about motives here, here, and here. What happens when we codify our specualtions into law?

Traditional legal trials never judged motivation. Trials judge the state of mind and the consequences of action. To judge the state of mind, mens rea, we evaluate evidence that shows a person’s intent and knowledge. Proof can be shown if a person is sane or not whether they were drunk at the time or not, whether the action was negligent, reckless or deliberate. You cannot speculate about motives because you lack evidence.

Intent is provable through actions taken. We can tell if a killing was accidental, negligent manslaughter, passtionate murder or deliberate planned murder by the actions taken (or omitted) by the accused.

If a person is killed by a car, we can evaluate evidence to determine what happened. Was it an unfortunate accident? Was the driver drunk and driving recklessly? Was this a planned hit and run murder? Was the driver sane or delusional at the time? Note that intent is different from motives.

Speculating about a persons motivations did not play a serious role in the formal legal system until very recently. Witch hunts, on the other hand, rely entirely on speculation about motives.

Simply, legal courts answer “whether” and “how” the crime was committed and what the punishment should be. It cannot and should not speculate as to “why.”

Now we have a thing called “Hate Crimes.” Why did the accused kill the victim? Because he hated him. Do you have evidence of this? Because I said so.

Conviction of a hate crime results in increased punishment.
So Person A hunts down and kills a wealthy man.
And Person B hunts down and kills a Jewish man.

Person B will be accused of racism, convicted of a hate crime and sentenced to a longer prison term than Person A. Proof of motive? None is possible. This is based on a jury’s speculation of what the motive may have been where they have no power to know for a fact.

But this gets even stranger. What if person A is a hard-core anarchist and his political philosophy calls for him to murder rich men? How is this different than racism? Why is one type of politically motivated murder worse than a different type of politically motivated murder?

This legislates our personal morality into the law by weighing murders differently. Instead of all being equal under the law, some victims must be avenged more harshly than others. This is about retribution based on our gut feeling.

Can we ever know what a persons motives were? Even a signed confession is not evidence of motive. A signed confession is evidence of intent to sign a confession. Nothing more. He may be lying for a plea bargain deal.

How much do you trust your guess?

It turns out you shouldn’t.
The Matthew Shepard Murder was used as a symbol to push for hate crime laws to protect gays. It was a nasty crime. A young man was tied to a fence and beaten to death.

I won’t comment on the murder itself, but I’m interested in the “narrative” that formed immediately afterwards.

“We knew in the newsroom the day it happened, this is going to be a huge story, this is going to attract international interest,” said Jason Marsden of “The Casper Star-Tribune.”

“I remember one of my fellow reporters saying, ‘this kid is going to be the new poster child for gay rights,” he added.

He was gay. He was murdered. Therefore he must have been murdered because he was gay. A logical fallacy when stated clearly, but this was obscured by emotional sentiments.

Many used a correspondent inference to describe the killers motivations before they even knew who the killers were. Did they consider alternative explanations and variables?

And it turns out to have been one of those unspoken alternatives – Drugs.

While McKinney and Henderson admit to killing Shepard, both men — and the man who prosecuted the case — now say the real story is not what it seemed.

But Shepard’s killers, in their first interview since their convictions, tell “20/20’s” Elizabeth Vargas that money and drugs motivated their actions that night, not hatred of gays.

The killers were on drugs and tried to rob him. They were captured and punished to the full extent of the law regardless of their unknown motive. The prosecutor Cal Rerucha, who brought the killers to justice – said there was no proof they killed him because he was gay. All we know is that the killers intended to attack and rob Shepard. That is enough to punish them with life sentences.

Do I know their motives? No. I won’t speculate. Emotional speculation without evidence should never play a role in law.

The intitial narrative – he was killed because he was gay – came under doubt when the killers were caught. Yet the narrative stuck anyway. This year Congress tried to pass a Matthew Shepard Hate Crimes law. It’s a curious title since its title-bearer may not have been a victim of a hate crime.

Hate crimes have a similarity to similar laws against “sedition” and “subversive activities.”

And like sedition and subversive activities, these type laws are deeply abused. Talk Left has a good list on concerns about the constitutionality and other legal problems with hate crimes. Like sedition and subversive activities, hate crimes regulate the thought process. Out of context statements made years prior to a crime can be used to increase prison time.

Ah, but isn’t the real purpose of hate crimes to punish people we declare to be bigots so we can feel good about ourselves?

Take the case of a Pace College student. He took two books (apparently from a library) and dropped them in a toilet. This is petty vandalism of less than $20 of property. It’s a misdemeanor.

But because of hate crimes laws, he is being charged with a felony and faces a prison term. The books he destroyed were archaic and false religious texts of some sort named the “kora” or “korean” or something goofy.

Now that we’re in the realm of speculating about “hateful” motives without evidence, are we vulnerable too? Religious fundamentalists may use hate crimes laws to attack secularists for not actively disbelieving in their faith.

Come to think of it, wasn’t the Enlightenment a hate crime against religion?