Orin Kerr of The Volokh Conspiracy comments on a decision by the Kansas Supreme Court:
The Kansas Supreme Court issued its decision in Kansas v. Limon [yesterday], invalidating a Kansas statutory scheme that imposed higher punishments for same-sex sexual misconduct than opposite-sex sexual misconduct. . . .It seems to me that (1) the Kansas Supreme Court's reasoning is correct and (2) the same reasoning can be applied to so-called hate-crime statutes, in which the penalty for a crime is based on its supposed motivation rather than its actual severity.
Limon argued that Kansas law violated the equal protection clause of the Fourteenth Amendment because if the act had taken place between opposite sex participants, Limon would have received a much lower punishment . . . than he did. . . . The Kansas Supreme Court agreed, finding that the different treatment did not survive rational basis scrutiny and was therefore unconstitutional under the Equal Protection clause. . . .
UPDATE: I knew that I should have addressed the distinction between motivation and intention. Because I didn't do so, a reader took issue with what I wrote above by suggesting (wrongly, I believe) that "the criminal law system is largely built on the fundamental premise of punishing crimes based on motivation rather than outcome." He pointed me to the Wikipedia article about manslaughter. I found the article about murder to be more helfpful in drawing the distinction between motivation and intention:
In law, murder is the crime of a human being causing the death of another human being, without lawful excuse, and with intent to kill or with an intent to cause grievous bodily harm. . . .The distinction between murder and voluntary manslaughter rests on the timing of intention -- whether or not the killer intended to kill the victim before the encounter that led to the victim's death. The distinction between voluntary and involuntary manslaughter rests on whether or not the killer intended to kill the victim. Proving motivation (or lack thereof) may be crucial to proving intention, and the timing of intention. But the distinctions between murder, voluntary manslaughter, and involuntary manslaughter revolve around intention and its timing with respect to the act of killing.
- Unintentionally caused deaths due to recklessness or negligence are treated in most countries as the lesser crime of involuntary manslaughter or criminally negligent homicide
- Intentional killings without premeditation are sometimes charged as voluntary manslaughter rather than murder.
A hate crime, on the other hand is defined by motivation:
A hate crime is a crime (not necessarily a violent crime, though sometimes so) that is motivated by prejudice against a social group. . . .In sum, the logic of hate-crime legislation plays out like this:
In the last decade of the 20th century, legislation in many U.S. states has established harsher penalties for a number of crimes when they are also considered hate crimes. . . .
[H]ate crime prosecutions seek to punish an individual for motive rather than intent. For example, the difference between first or second degree murder is intent, not motive. . . .
- A (a man) murders B (a woman), with premeditation, after learning that B has embezzled funds from A. A's sentence is, say, 20 years to life, with the possibility of parole.
- A murders B, with premeditation, after learning that B has been involved in a lesbian affair with A's wife. A is shown to have expressed his distaste for lesbianism. A's sentence is, say, life without parole.
There's already more than enough mind-reading involved in drawing lines between various degrees of murder and manslaughter, not to mention other types of crime in which similarly fine distinctions arise. Hate-crime legislation compounds the already difficult task of mind-reading and widens the gap between the act (e.g., killing) and the punishment for that act.
The result is to give preference to certain identifiable groups (e.g., homosexuals) while, by implication, denigrating others (e.g., embezzlers). Or, to turn it around, the result is to treat the murderers of embezzlers more leniently than the murderers of homosexuals. Either way you look at it, hate-crime legislation seems to run afoul of the Fourteenth Amendment's guarantee of "equal protection of the laws."
I'll Never Understand the Insanity Defense (03/31/04)
A Crime Is a Crime (11/26/04)