quote:

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Originally posted by Kaplan Corday:
If someone deliberately murders someone else, what difference should it make whether, as in this case:-

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Originally posted by mdijon:
And as Golden Key says the latter is likely more dangerous to society, and so it makes sense for society to want to have a particularly well-honed response.

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Originally posted by Sioni Sais:
It may be good to have "Hate crime" legislation, but I'm not sure how enforceable it is. In addition to proving some crime to the satisfaction of a jury, a case must be made that it was caused by or is to encourage hate of some kind.

Evidence of murder, assault and the like is easy to come by compared to evidence of hate, about which a jury is far less likely to agree.

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Originally posted by mdijon:
The CPS seems to be making a go of it. I'm sure they wouldn't describe it as "easy" but then it isn't supposed to be.

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Originally posted by HCH:
The notion that declaring some category of crimes as hate crimes and giving such offenders harsher sentences seems to derive from either the concept of deterrence or the concept of vengeance. I don't think either of those works well. Deterrence doesn't work because no one ever expects to be caught, and vengeance is a poor basis for justice.

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Originally posted by Alt Wally:
I would guess hate laws are a very effective deterrent in stopping crazy, hate filled people from committing crimes.

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Originally posted by Byron:
Hate crimes aren't "thought crimes," they're aggravating factors to an overt criminal act. Most crimes have a mental element (mens rea, guilty mind), and criminals have long been punished more harshly for things like premeditation, or less harshly if they're provoked. This is no different.

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"Hate crime" generally refers to criminal acts that are seen to have been motivated by bias against one or more of the types above, or of their derivatives. Incidents may involve physical assault, damage to property, bullying, harassment, verbal abuse or insults, or offensive graffiti or letters (hate mail).

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When people are murdered because they live in a city where the population as a whole hates them for being part of some category, and where the authorities share the same attitude so that the murders go unpunished and therefore unchecked, a federal hate crime law allows the country as a whole to say that it's unacceptable. It's an important tool in rooting out institutionalized hate - think lynch mobs with no repercussions for the perpetrators.

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Originally posted by Byron:
I'm not in favor of banning or restricting hate speech. I don't think speech should be restricted on the grounds that it may cause offense.

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Originally posted by Fr Weber:
I'm just not sure I can say that murdering someone because she was a woman is necessarily worse than murdering her because she played her stereo too loud late at night.

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Originally posted by saysay:
Xpost: This was to Byron.

Are you in law school or something? You seem to have a very detailed knowledge of the law in theory and no understanding of how it plays out in practice.

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Originally posted by Teufelchen:

quote:

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Originally posted by saysay:
Xpost: This was to Byron.

Are you in law school or something? You seem to have a very detailed knowledge of the law in theory and no understanding of how it plays out in practice.

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Do you think aggravating and mitigating factors, including but not limited to 'hate crime' issues, are not applied in practice?

t

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quote:

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Originally posted by HCH:
The notion that declaring some category of crimes as hate crimes and giving such offenders harsher sentences seems to derive from either the concept of deterrence or the concept of vengeance. I don't think either of those works well. Deterrence doesn't work because no one ever expects to be caught, and vengeance is a poor basis for justice.

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Originally posted by Fr Weber:
I'm just not sure I can say that murdering someone because she was a woman is necessarily worse than murdering her because she played her stereo too loud late at night.

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Originally posted by Alt Wally:
I would guess hate laws are a very effective deterrent in stopping crazy, hate filled people from committing crimes.

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Originally posted by Kaplan Corday:
Deterrence is not the point of punishment, whether it works or not.

As C.S. Lewis argued (in his The Humanitarian Theory Of Punishment), if deterrence is all that matters, then there would be nothing wrong with executing someone who had not actually committed the crime, as long as the judicial system could convince everyone else that they had.

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The case of Eichmann is also relevant to the hate crime issue.

While Hannah Arendt’s “banality of evil” thesis (that Eichmann was just a robotic bureaucrat trying to do as efficient a job as possible to please his superiors) might be something of an overstatement, it remains true that there is very little evidence that he was motivated by any sort of passionate anti-Semitism.

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Originally posted by saysay:

quote:

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Originally posted by Teufelchen:

quote:

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Originally posted by saysay:
Xpost: This was to Byron.

Are you in law school or something? You seem to have a very detailed knowledge of the law in theory and no understanding of how it plays out in practice.

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Do you think aggravating and mitigating factors, including but not limited to 'hate crime' issues, are not applied in practice?

t

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No, I don't. I can't speak to your country, but in the US more than 93% of charges result in plea bargains. Frequently brought on as a result of prosecutors overcharging. Hate crime legislation (no matter how well intentioned) is simply another tool in the hands of the wealthy and powerful that allows them to keep the school to prison pipeline functioning effectively.

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And in this case, I did notice how quick it became a case about the death of Muslims, not about a parking space dispute between individuals. It's not axiomatic/automatic that this guy couldn't have had an equally toxic dispute over something as petty as a parking space if the dispute had been with a Christian or atheist neighbour instead of a Muslim one.

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Originally posted by mousethief:
A hate crime is, in essence, terrorism. An effort to cow a group of people using terror. Burning crosses on lawns is a good example of how a hate crime is terrorism. Get those blacks to move out of the neighborhood, or at least stop looking at white women. Pure terrorism.

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Originally posted by Alt Wally:
Even the distinction of these two categories has one critical commonality. The standards applied in both in determining guilt are not affected by any categorical status of the perpetrator or the victim. There is constitutional guarantee of equal protection under the law. Hate crime is a form of premeditation that explicitly denies equal protection. That is the whole point as has been noted above in its "enhanced nature".

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Originally posted by mdijon:
Of course there is no scientific evidence that hate crime legislation works. That is also the case for most elements of the justice system.

The argument for hate crime legislation is that, as orfeo describes, a society takes a view that particular prejudices driving violent crime are especially pernicious and need particular attention given to fighting them.

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Originally posted by Alt Wally:
Our understanding of the brain is likely going to cause a re-evaluation of how figure what the source of violence is and what the risk is of it happening again.

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Originally posted by Alt Wally:
Hate crime is a form of premeditation that explicitly denies equal protection. That is the whole point as has been noted above in its "enhanced nature".

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Originally posted by Palimpsest:
Hate crime laws are meant to deal with specific patterns of crime.
Various people on this board have asked that something be done about the anti-Christian violence that occurs in several Islamic countries. Note they did not ask for action on generic violence against both Christians and Muslims in those countries. They wanted remedies for a specific pattern of violence, one that has frequently been tolerated or even approved by law enforcement in that country.
Generalizing the problem into "all violence" makes any attempts at solution ineffective.

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Originally posted by Dafyd:

Interior psychological states are not of much interest to anyone else. It is when they manifest as action that they become important.

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Originally posted by Kaplan Corday:

quote:

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Originally posted by Dafyd:

Interior psychological states are not of much interest to anyone else. It is when they manifest as action that they become important.

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In the case I referred to in the OP, those who try him will probably try to work out whether his “interior psychological state” consisted of a hatred for religious people in general, and that the three young people he shot were simply representatives of that group, in which case they will call it a "hate crime"; or whether he shot three young people, regardless of their religiosity or lack thereof, merely because they had annoyed him over a parking space.

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It is equally evil and irrational to think you have the right to arbitrarily shoot anyone who crosses you, as it is to think you have the right to arbitrarily shoot anyone whose faith you don’t like.

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In Eichmann’s case, his culpability lies in the fact that he was complicit in the mass murder of innocent human beings by going along with a system which was doing just that.

Whether or not it was a “hate crime” on the part of those for whom he worked has no relevance to his personal guilt.

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Originally posted by la vie en rouge:
Which is a sign that your criminal justice system is broken. It doesn't mean that the category of 'hate crime' serves no usual purpose per se.

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Originally posted by Kaplan Corday:
Whether or not it was a “hate crime” on the part of those for whom he worked has no relevance to his personal guilt.

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Originally posted by Dafyd:
hate crime is more culpable than personal crime

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Originally posted by Kaplan Corday:
Justice demands that they be punished only for the car thefts which they have personally committed, not in addition for the fear aroused of those which might be committed in emulation.

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Obviously killing someone for being religious is a far worse crime than stealing a car, and should be more severely punished, but the principle is the same: no-one deserves to be punished for crimes which other people might commit.

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Originally posted by Palimpsest:
Do you think laws against murder, including capital punishment are a very effective deterrent in stopping people from committing murder?
Hate crimes are a multiplier given for an implicit conspiracy of multiple actors and for the intent to intimidate entire groups. If you don't like that, check out the United States RICO statutes for draconian actions. They were motivated to cope with gangs that would intimidate or murder witnesses and judges. All of this in the United States comes in response to a long history of unfair treatment of the protected groups.
As was pointed out earlier in the thread, some of the conspiracy includes local law enforcement. The hate crimes multiplier, like the multiplier for intent require judging the purpose of actions. We expect courts to be able to do so.

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Originally posted by Palimpsest:
Hate crime laws are meant to deal with specific patterns of crime.
Various people on this board have asked that something be done about the anti-Christian violence that occurs in several Islamic countries. Note they did not ask for action on generic violence against both Christians and Muslims in those countries. They wanted remedies for a specific pattern of violence, one that has frequently been tolerated or even approved by law enforcement in that country.
Generalizing the problem into "all violence" makes any attempts at solution ineffective.

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Originally posted by Crœsos:
]It's been remarked that to white folks, race is something other people have. I think the kind of flawed and false analysis Alt Wally puts forward comes from the same general sentiment. It conflates the observation "people of my race/religion/sexual orientation are rarely, if ever, assaulted or murdered because of their race/religion/sexual orientation" with the false notion "therefore this law only applies to these other people".
To take a not entirely at random example, gay bashing still falls under the rubric of hate crime law even if the person bashed was actually straight. What matters is the motives of the perpetrator, not the categorical status of either party.

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Originally posted by mdijon:
Do you mean in terms of neurophysiology? If so I think such an understanding is a very long way away. The imaging and biochemical tests available have way too low a resolution to do anything so subtle.
Or do you mean in terms of the model one has to explain it?
Either way it may be that in terms of the societal risk one still gives hate crimes a particular focus, not simply because the perpetrators may be higher risk, but the risk of the crime impacting the rest of society and leading to further polarization is higher.

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Originally posted by Russ:
Does your definition of "hate crime" imply premeditation ? Is it not possible in a fit of rage to kill someone from a group that you despise, with their status forming part of the motivation but without prior intention to do so ?

Premeditation is tied up with rationality. If I kill you cold-bloodedly, reasoning to gain personal advantage thereby, that's normally considered more evil than killing you in a fit if temper. But the sort of prejudice (against gays or blacks for example) that underpins many instances of what are called "hate crimes" seems basically irrational. Such a murder seems like the same sort of giving in to irrational urges as the "fit of temper" case.

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Originally posted by Doc Tor:
It's widely recognised that overcharging by prosecutors to leverage plea bargains (as recognised here) is a feature of the US criminal justice system.

There is no good reason to expect aggravating hate crime charges are not going to be part of that.

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Originally posted by Byron:
Moreover, as the Zimmerman case illustrates, federal hate crime laws are very tightly drawn. The Justice Dept. would, it's safe to say, have loved to charge the guy. It launched a thorough investigation, but no charges were filed for lack of evidence.

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Originally posted by Alt Wally:
I would actually be curious if your latter scenario really occurred, and if so if the prosecutors in the case were actually able to get a conviction and enhanced punishment on the basis of a hate crime. I would have thought they would have faced a pretty monumental task in doing so.

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Originally posted by Alt Wally:
I am saying that Neuroscience is raising ethical questions that are not easy to answer, and those questions are not a long way off. http://www.livescience.com/13083-criminals-brain-neuroscience-ethics.html

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Originally posted by Alt Wally:
I’m obviously not arguing that bias motivated crime doesn’t happen or isn’t detrimental to society, I’m just not convinced that hate crime laws have the intended effect. I think there is an emotional side to it that supposes enhanced punishment will be a deterrent, and like capital punishment I suspect that isn’t true.

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But perhaps what is desired in those instances is simply equal application under the law, and not necessarily special protections. I don’t think it’s a matter of Christians either, the group in question could be Yazidis, Shiites, Atheists, etc.

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quote:

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Originally posted by Dafyd:

quote:

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Originally posted by Kaplan Corday:
Justice demands that they be punished only for the car thefts which they have personally committed, not in addition for the fear aroused of those which might be committed in emulation.

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Firstly - why? The fear aroused is a consequence of their actions that is foreseeable by the thief, and for which it seems appropriate that the thief should take responsibility for.

quote:

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Obviously killing someone for being religious is a far worse crime than stealing a car, and should be more severely punished, but the principle is the same: no-one deserves to be punished for crimes which other people might commit.

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Inciting somebody else to commit a crime is usually seen as immoral and as deserving to be illegal. If one foreseeable consequence of committing a crime is that it makes that kind of crime seem acceptable I don't see why that shouldn't also be taken into account in sentencing.

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Originally posted by mdijon:
I think this confuses the distinction between the guilty/not guilty step and the sentencing step.

The former ought not to consider any such ramifications since it is about standards of proof of guilt for the crime. The latter may consider other factors that determine the severity of the crime, many of which are not objective and may relate to emotional distress and risks of re-offending etc. I believe that is standard in UK justice.

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Originally posted by Teufelchen:
Co-operating rather than not co-operating with the investigation may be considered a mitigating factor, as may a prompt plea of 'guilty'. But we don't choose the charges on the basis of extracting a particular plea.

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Originally posted by orfeo:
The chief lack of evidence being that [Zimmerman had] committed any crime whatsoever, never mind a hate crime. You make it sound like they went "dammit, we can only get him for common murder, not racially motivated murder".

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quote:

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Originally posted by Teufelchen:

quote:

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Originally posted by mdijon:
I think this confuses the distinction between the guilty/not guilty step and the sentencing step.

The former ought not to consider any such ramifications since it is about standards of proof of guilt for the crime. The latter may consider other factors that determine the severity of the crime, many of which are not objective and may relate to emotional distress and risks of re-offending etc. I believe that is standard in UK justice.

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It is. And to the best of my knowledge, we don't have plea bargains. The offences to be tried are selected by the Crown Prosecution Service on the basis of what case can be made on the basis of the available evidence, and what is most likely, given those facts, to secure a conviction.

Co-operating rather than not co-operating with the investigation may be considered a mitigating factor, as may a prompt plea of 'guilty'. But we don't choose the charges on the basis of extracting a particular plea.

t

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Originally posted by Kaplan Corday:
In both cases the ramifications, emotional or otherwise, of a crime are subjective, incalculable, and limited only by the imagination of a prosecutor.

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That is why, for example, a trial for an emotionally charged offence such as the sexual molestation of a child should, as far as possible, be protected from attempts to drag in other other, unrelated, real or potential examples of paedophilia in an attempt to produce a moral panic which will sway the case against the accused.

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Originally posted by mdijon:
I'm not bowled over by the quality of the study, or the relevance of identifying some such abnormalities in a small number of individuals with personality disorders. I certainly don't see it undermining the concept of a hate crime, even if there might be instances where individuals with these personality disorders get caught up with the hate-crime label.

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Originally posted by Palimpsest:
Leaving out capital punishment, do you think laws against homicide with penalties do any good? There's a presumption that all laws with criminal penalty do some good. You seem to treat penalties for hate crime as requiring more justification than penalties for other crimes in order to satisfy you. That is unconvincing to those of us who value the law.

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All hate crime laws that have been passed in the United States don't protect a specific class of people, but deal with certain types of crime.

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Originally posted by Alt Wally:
I am asking for the justification for hate crime, because I am skeptical hate laws actually have the deterrent effect they are supposed to. If we are going to add extra complication to the legal process, extra punishment for those convicted of crimes, we should do it because it works.

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Originally posted by Doc Tor:
A non-contentious example would be punching someone, and punching a police officer.

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Originally posted by Dafyd:
As mdijon points out this refers to the question of whether someone is guilty or innocent, not to what penalty should be applies if the person is found guilty.

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Determining whether something should be a crime and what kind of penalty should typically be applied are decisions that get made on general principles.

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Originally posted by RuthW:
Here in the US police officers are apparently allowed to kill people with impunity, so I have a hard time with the notion that it's worse to punch one of them than to punch someone else.

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Originally posted by Kaplan Corday:
Penalties, also, however, should as far as possible not be determined by the pressures of current fashionable ideas and emotions.

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Originally posted by Kaplan Corday:
And the general principle in western legal systems is that penalties should be consistent, and not determined by the perceived standing (religious, ethnic, caste, social class, whatever) of the victim.

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quote:

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Originally posted by Kaplan Corday:

quote:

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Originally posted by Dafyd:
As mdijon points out this refers to the question of whether someone is guilty or innocent, not to what penalty should be applies if the person is found guilty.

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Penalties, also, however, should as far as possible not be determined by the pressures of current fashionable ideas and emotions.

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quote:

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quote:

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Determining whether something should be a crime and what kind of penalty should typically be applied are decisions that get made on general principles.

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And the general principle in western legal systems is that penalties should be consistent, and not determined by the perceived standing (religious, ethnic, caste, social class, whatever) of the victim.

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Originally posted by Dafyd:
This is one of those irregular verbs, isn't it?
I base my opinions on objective rational factors.
You base your opinions on the pressures of current fashionable ideas and emotions.

'Fashionable' is a great all-purpose dismissal of anything whatsoever.

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Originally posted by Kaplan Corday:
The killings of Muslims (at least when carried out by non-Muslims; most Muslims are killed by their co-religionists) are taken very seriously, as is the concept of “Islamophobia”.

Killings of Christians (such as the twenty-one Coptic believers beheaded recently in Libya by ISIS) tend to go unreported or at least unremarked, with a sub-text of “serve them right for all the killings Christians have carried out in past centuries”, and any attempts to launch the neologism “Christophobic” have been treated with derision.

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Originally posted by Kaplan Corday:
An individual human being is of inestimable value, whether from a Christian or a humanist point of view, and to make murders of some more significant than the murders of others is invidious and unacceptable.

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Originally posted by Karl: Liberal Backslider:
Certainly more coverage than the murders of those Muslim students by that atheist nutter last week.

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Originally posted by Dafyd:

I doubt you apply your principle realistically across the board. I repeat: do you apply it to:
a) the murder of police officers?
b) the murder of the elderly and infirm?
c) the murder of children?

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Originally posted by Kaplan Corday:
Killings of Christians (such as the twenty-one Coptic believers beheaded recently in Libya by ISIS) tend to go unreported or at least unremarked,

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Originally posted by Kaplan Corday:

quote:

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Originally posted by Karl: Liberal Backslider:
Certainly more coverage than the murders of those Muslim students by that atheist nutter last week.

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Evidence?

It certainly wasn't self-evident to me.

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Originally posted by Doc Tor:
We can, as a society, choose to flag certain aggravating factors as requiring a harsher sentence, just in the same as we have mitigating factors. And we've had to codify what we now term "hate crimes" as aggravating because our legal systems were particularly (and often wilfully) blind to recognising those factors.

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Originally posted by Russ:
I find myself wanting to make a distinction between
- an aggravating factor that a judge should consider when sentencing someone for a crime for which they have been found guilty
- a law whereby the presence of that same factor makes it a more serious crime.

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Originally posted by Twilight:
It reminds me of eighteenth century peasants getting a night in jail for beating up a scullery maid and a hanging for slapping an aristocrat.

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Originally posted by Russ:
If someone beats an old man or a child to death in circumstances where the helplessness of the victim should be a clear signal that they are not an appropriate target for violence, then yes that's an aggravating factor. If someone plants a car bomb and the victim happens to be an old man passing by, then that doesn't make it any worse than if it were some other passer-by.

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Originally posted by Twilight:
It reminds me of eighteenth century peasants getting a night in jail for beating up a scullery maid and a hanging for slapping an aristocrat.

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Originally posted by Twilight:
We're sending a message alright, we're saying that some people are valued more highly than others.

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Originally posted by mdijon:

quote:

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Originally posted by Twilight:
It reminds me of eighteenth century peasants getting a night in jail for beating up a scullery maid and a hanging for slapping an aristocrat.

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More after the eighteenth century where lots of scullery maids got beaten and discriminated against with impunity someone decided to enact a law with an additional penalty to make it really clear that is was no longer a big deal to beat the scullery maid because she was a scullery maid.

That would be correcting a problem of the eighteenth century, not saying that the scullery maid was worth more. (Although even if it was saying she was worth more there would be part of me that would think it was about time).

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Originally posted by quetzalcoatl:
This is surely based on the traditional idea of mens rea, but this has to be demonstrated by the prosecution, and not assumed.

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Originally posted by Twilight:
You don't get rid of prejudice with jail sentences and you certainly don't correct unfairness with unfairness.

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Originally posted by Dafyd:

quote:

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Originally posted by quetzalcoatl:
This is surely based on the traditional idea of mens rea, but this has to be demonstrated by the prosecution, and not assumed.

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Mens rea (mind with the thing) is not so much a traditional idea as one of the foundations of the common law justice system. You can't convict someone of a crime unless you can show that's what they intended (with appropriate modifications to the principle for crimes of negligence).

Oddly, even though states of mind are allegedly subjective and incalculable by the courts, the courts do still manage to prosecute people.

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Originally posted by Alt Wally:

quote:

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Originally posted by Crœsos:
]It's been remarked that to white folks, race is something other people have. I think the kind of flawed and false analysis Alt Wally puts forward comes from the same general sentiment. It conflates the observation "people of my race/religion/sexual orientation are rarely, if ever, assaulted or murdered because of their race/religion/sexual orientation" with the false notion "therefore this law only applies to these other people".
To take a not entirely at random example, gay bashing still falls under the rubric of hate crime law even if the person bashed was actually straight. What matters is the motives of the perpetrator, not the categorical status of either party.

---

Hate laws are intended to apply protections to protected classes; i.e. specific categories of the population. The punishments are “enhanced” to further their protection. . . . A further issue is the protected classes are somewhat selective, both in terms of the way hate laws are defined (and they are mostly local, which is counter intuitive to what some have presented here as their intent) and what classes are protected.

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Originally posted by Twilight:
It's not the job of our criminal courts to create a world free of bigotry by favoring one group over another.

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quote:

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Originally posted by mdijon:

quote:

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Originally posted by Twilight:
It's not the job of our criminal courts to create a world free of bigotry by favoring one group over another.

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Imagine if they could though? Get rid of bigotry, I mean. Wouldn't that be great!

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Citation, please?

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quote:

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Originally posted by Doc Tor:

quote:

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Originally posted by Alt Wally:
I am asking for the justification for hate crime, because I am skeptical hate laws actually have the deterrent effect they are supposed to. If we are going to add extra complication to the legal process, extra punishment for those convicted of crimes, we should do it because it works.

---

I'm reasonably utilitarian, but I can see other justifications other than "it works". We can, as a society, choose to flag certain aggravating factors as requiring a harsher sentence, just in the same as we have mitigating factors. And we've had to codify what we now term "hate crimes" as aggravating because our legal systems were particularly (and often wilfully) blind to recognising those factors.

A non-contentious example would be punching someone, and punching a police officer.

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quote:

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Originally posted by mdijon:

quote:

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Originally posted by Twilight:
It's not the job of our criminal courts to create a world free of bigotry by favoring one group over another.

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Imagine if they could though? Get rid of bigotry, I mean. Wouldn't that be great!

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Originally posted by Twilight:
I don't think anyone ever became open-minded because of a law against close-mindedness. Law officers can't actually read our minds even if they think they can.

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Originally posted by Dafyd:
Mens rea (mind with the thing) is not so much a traditional idea as one of the foundations of the common law justice system. You can't convict someone of a crime unless you can show that's what they intended (with appropriate modifications to the principle for crimes of negligence).

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Originally posted by Doc Tor:
A non-contentious example would be punching someone, and punching a police officer.

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Originally posted by Russ:
Conversely, applying that tougher sentence to

- the hate-everybody mugger who calls his victim "you black bastard", "you rich bastard", "you limp-wristed bastard", "you fat bastard" etc using whatever adjective fits the case

is unjust, because they did not intend that wider threat-crime, even if their action contributed to that sense of threat.

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quote:

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Originally posted by Russ:
If a "hate crime" sentence is imposed only when the prosecution has proven beyond reasonable doubt that that element of threat to a whole community was intended, then I don't see a problem with it.

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quote:

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the easily-led mugger who deliberately targets victims from a particular minority because he's been told that hurting people is wrong but they don't count

is unjust, because they did not intend that wider threat-crime, even if their action contributed to that sense of threat.

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quote:

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Originally posted by Eliab:


As has been pointed out on this thread, an attack on a minority group is also an attack on society - hate crimes tend to fragment and polarise society. They tend to make (for example) black and white people see one another as potential enemies, not members of the same community.

[/QB]

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Originally posted by Twilight:
Doesn't all crime hurt society as a whole? Even something as small as stealing a bicycle from a front yard, can cause people in that neighborhood to become more fearful, less free in their homes, suspicious of their neighbors.

I think hate crime laws fragment society, causing some people to wonder why their lives are worth less than others in the eyes of our courts. How can we see ourselves as members of the same community if the laws are not applied to us all equally?

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Originally posted by Twilight:
Our anger and/or guilt over the past makes us want to turn things to the other extreme

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Originally posted by mdijon:

Banning prejudice benefits everybody - unless there are some groups that experience a lot of prejudice and other groups that don't experience so much.

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Originally posted by orfeo:

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Originally posted by Twilight:
We're sending a message alright, we're saying that some people are valued more highly than others.

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I think this is true. The question is: is this really so objectionable? Is there a problem with saying that certain people are valuable because of their role or function?

Talking about the intrinsic equality of all human beings is all very well, but I'm not sure that in practice society finds all of us equally important to society's continued functioning.

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Originally posted by Kaplan Corday:
I am sure you didn't intend it, but there is a very unpleasant eugenicist smell to this post.

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Originally posted by Twilight:
I think the best we can do is simply try to go forward with a goal of fair treatment for everyone.

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Originally posted by quetzalcoatl:
Even murder itself would disappear, since this involves looking into the mind of the accused - impermissible now, since all killings are equal.

In fact, I'm not sure that the notion of crime itself would survive, since this involves the notion of mens rea - the intending mind, or often translated as the guilty mind.

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Originally posted by mdijon:

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Originally posted by Twilight:
Our anger and/or guilt over the past makes us want to turn things to the other extreme

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It isn't the other extreme though. The other extreme would be to have a majority-black police force and justice system ignoring the racial targeting of white people for beatings and harassment.

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Originally posted by orfeo:

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Originally posted by Kaplan Corday:
I am sure you didn't intend it, but there is a very unpleasant eugenicist smell to this post.

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I fail to see how it can involve eugenics when I talked about skills and professions, not race, gender or anything else that is inherent to an individual.

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Originally posted by Dafyd:

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Originally posted by Twilight:
I think the best we can do is simply try to go forward with a goal of fair treatment for everyone.

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Well that's nice. Are we going to punish people for not treating other people fairly?

If redheads are in a position to treat blondes unfairly more often that the reverse, then redheads will be punished for not treating blondes fairly more often that the reverse. So punishing people would be unfair.
Let's just all forget it ever happened everytime it happens.

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Originally posted by Alt Wally:
The progressive journal The Nation has an interesting article from about a year and a half ago with the topic Hate crime laws don't prevent violence against LGBT people. The article states at the time research about the effectiveness of hate crime laws as a deterrent is thin; so there is no particular evidence they do or do not work in that regard. It notes as with traditional arguments for capital punishment, much support rests on a "common sense" assumption more severe penalties will deter some criminal actions.

This part is interesting

Liberals’ support for hate crime laws is not universal, however. There are progressive LGBT groups, such as Queers for Economic Justice and the Sylvia Rivera Law Project, that do not support them. There are two main reasons for this opposition. The first is that the laws are disproportionately used against poor people and people of color. The second is that they simply try to fix the problem of bias crime by putting people in prison for longer periods of time, which usually leads to more-hardened criminals. The American Civil Liberties Union (ACLU) has long objected to many hate crime laws because they are predicated on punishing not only action, such as assault, but on punishing constitutionally protected free speech. The ACLU is concerned that hate crime laws criminalize thoughts, arguing that it should not be a crime to think or articulate hurtful statements. Hurting someone’s feelings may be offensive, even emotionally painful, but it shouldn’t be against the law.

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Originally posted by Twilight:

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Originally posted by Alt Wally:
The progressive journal The Nation has an interesting article from about a year and a half ago with the topic Hate crime laws don't prevent violence against LGBT people. The article states at the time research about the effectiveness of hate crime laws as a deterrent is thin; so there is no particular evidence they do or do not work in that regard. It notes as with traditional arguments for capital punishment, much support rests on a "common sense" assumption more severe penalties will deter some criminal actions.

This part is interesting

Liberals’ support for hate crime laws is not universal, however. There are progressive LGBT groups, such as Queers for Economic Justice and the Sylvia Rivera Law Project, that do not support them. There are two main reasons for this opposition. The first is that the laws are disproportionately used against poor people and people of color. The second is that they simply try to fix the problem of bias crime by putting people in prison for longer periods of time, which usually leads to more-hardened criminals. The American Civil Liberties Union (ACLU) has long objected to many hate crime laws because they are predicated on punishing not only action, such as assault, but on punishing constitutionally protected free speech. The ACLU is concerned that hate crime laws criminalize thoughts, arguing that it should not be a crime to think or articulate hurtful statements. Hurting someone’s feelings may be offensive, even emotionally painful, but it shouldn’t be against the law.

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Yes!

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Originally posted by Alt Wally:
There are two main reasons for this opposition. The first is that the laws are disproportionately used against poor people and people of color. The second is that they simply try to fix the problem of bias crime by putting people in prison for longer periods of time, which usually leads to more-hardened criminals. ....

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Originally posted by Alt Wally:
The ACLU is concerned that hate crime laws criminalize thoughts

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Originally posted by quetzalcoatl:
Thus, in English law, in rape cases, the defendant is able to argue that it was reasonable for him to assume that the woman was consenting. For example, in a recent case, a video showed the woman arriving in a taxi with the defendant at his hotel, and going up to his room, in the middle of the night. The jury accepted that it was reasonable for him to assume that she was up for sex.

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Originally posted by Twilight:

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Originally posted by Dafyd:

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Originally posted by Twilight:
I think the best we can do is simply try to go forward with a goal of fair treatment for everyone.

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Well that's nice. Are we going to punish people for not treating other people fairly?

If redheads are in a position to treat blondes unfairly more often that the reverse, then redheads will be punished for not treating blondes fairly more often that the reverse. So punishing people would be unfair.
Let's just all forget it ever happened everytime it happens.

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We're talking about courts of law here. We're talking about crimes.

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To use your examples, hate crimes would add years of punishment to someone who raped a blonde if he said he hated blondes in the process. I want courts to punish all rapists equally whether or not they hate their victims or think they love them and whether or not they are redheads or blondes. Same crime, same punishment.

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Maybe we should try to send a message that we won't put up with this bias any longer and allow greater leniency toward rapists who attack blondes while adding a harsher sentence to the ones who attack brunettes and redheads. Good idea?

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Originally posted by Twilight:
Doesn't all crime hurt society as a whole? Even something as small as stealing a bicycle from a front yard, can cause people in that neighborhood to become more fearful, less free in their homes, suspicious of their neighbors.

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Originally posted by Eliab:
But suppose I steal your bicycle to send a message - 'people like you' aren't welcome here, don't merit any consideration or respect, deserve nothing better than the contempt of the rest of us, that would be worse. It's an attack on your identity which is going to cause you fear and discomfort every day, of a sort that can't be alleviated by buying a stronger D-lock for your next ride. It may make 'people like you' not just resentful of thieves in general, but hostile to 'people like me', especially if many of your interactions with 'us' involve 'us' treating 'you' as our enemies.

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Originally posted by mdijon:
On which basis we would get rid of murder charges. These are disproportionately used on the same groups and the difference between murder and manslaughter simply results in longer prison sentences which is apparently counter-productive.

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Has anyone anywhere in the US been prosecuted for thoughts without actions?

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Originally posted by Twilight:

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Originally posted by orfeo:

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Originally posted by Kaplan Corday:
I am sure you didn't intend it, but there is a very unpleasant eugenicist smell to this post.

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I fail to see how it can involve eugenics when I talked about skills and professions, not race, gender or anything else that is inherent to an individual.

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Orfeo, I'm not talking about laws that protect police officers on duty, to me that's a whole different subject.

I'm talking about laws that add extra penalties to assault charges based on who the victim is.

I can see that in obvious cases of defenseless victims like children and disabled people but I think it's gone too far, and too hard to determine, when we add to the charges based on the color or sexual orientation or religion of the victim. It makes it a worse offense to beat up a strong young African American than to beat up an old white woman. It means trying to determine if the mugger "hated," the victim or just wanted his money. It gets into areas where I don't think our courts need to go. It's already a crime to beat someone, anyone, up.

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Originally posted by saysay:

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Originally posted by Eliab:
But suppose I steal your bicycle to send a message - 'people like you' aren't welcome here, don't merit any consideration or respect, deserve nothing better than the contempt of the rest of us, that would be worse. It's an attack on your identity which is going to cause you fear and discomfort every day, of a sort that can't be alleviated by buying a stronger D-lock for your next ride. It may make 'people like you' not just resentful of thieves in general, but hostile to 'people like me', especially if many of your interactions with 'us' involve 'us' treating 'you' as our enemies.

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As much as I can agree with this in theory, my problem with these laws is how anyone determines that you were trying to send a message.

Apart from a confession from you, or a confession from one of your co-defendants (yeah, Eliab said he wanted to make sure he knew his kind wasn't welcome here), this just seems tricky to me.

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Originally posted by Twilight:
I want courts to punish all rapists equally whether or not they hate their victims or think they love them and whether or not they are redheads or blondes. Same crime, same punishment.

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Originally posted by orfeo:
As much as I can agree with this in theory, my problem with these laws is how anyone determines that you were trying to send a message.

Apart from a confession from you, or a confession from one of your co-defendants (yeah, Eliab said he wanted to make sure he knew his kind wasn't welcome here), this just seems tricky to me.

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How do you determine intent to kill on a murder charge, apart from a confession?

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Originally posted by orfeo:
You seem to be quite seriously arguing for mandatory sentencing laws, without any discretion. Time and again it's been shown that mandatory sentencing creates ridiculous injustice because you get cases where people meet all the technical requirements of a conviction but everyone can see that the moral culpability is not as great as another example of the same offence.

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Originally posted by Twilight:
I agree with Russ. I'm not for mandatory sentencing and I believe all sorts of factors should be considered by the judge at the time of sentencing. Hate Crimes add in extra jail time right off the bat, based solely on who the victim is and whether or not the prosecutor thinks the perpetrator was biased against that group. It gives less discretion to the judge, not more.

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Originally posted by Doc Tor:
Except that's not how it works.

You have to prove the racially-aggravated (or whatever) element to the crime to the same level of proof as you do the crime. So it's not "right off the bat".

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Originally posted by Russ:

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Originally posted by orfeo:
You seem to be quite seriously arguing for mandatory sentencing laws, without any discretion. Time and again it's been shown that mandatory sentencing creates ridiculous injustice because you get cases where people meet all the technical requirements of a conviction but everyone can see that the moral culpability is not as great as another example of the same offence.

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I agree with you on this point. But this seems like a reason for having the level of hate involved treated as an aggravating factor rather than as defining a more serious crime (with a higher minimum sentence which may not be appropriate for those who qualify under a technicality).

The hypothetical hate-everybody mugger isn't attacking a differently-coloured victim out of a racial motive, but it might sound like he is if you take his words to his different-colour victim out of the context of the words he says to all his same-colour victims.

The hypothetical easily-led mugger is choosing his victim out of a racial motive but doesn't feel (or desire to stir up) any level of inter-racial hate.

Discretion is required to distinguish these from the real proponents of inter-racial strife.

Best wishes,

Russ

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Originally posted by Twilight:
I agree with Russ. I'm not for mandatory sentencing and I believe all sorts of factors should be considered by the judge at the time of sentencing. Hate Crimes add in extra jail time right off the bat, based solely on who the victim is and whether or not the prosecutor thinks the perpetrator was biased against that group. It gives less discretion to the judge, not more.

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Originally posted by Doc Tor:

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Originally posted by Twilight:
I agree with Russ. I'm not for mandatory sentencing and I believe all sorts of factors should be considered by the judge at the time of sentencing. Hate Crimes add in extra jail time right off the bat, based solely on who the victim is and whether or not the prosecutor thinks the perpetrator was biased against that group. It gives less discretion to the judge, not more.

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Except that's not how it works.

You have to prove the racially-aggravated (or whatever) element to the crime to the same level of proof as you do the crime. So it's not "right off the bat".

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Originally posted by quetzalcoatl:
I recall that when the Bills were going through Parliament, it was mainly right-wingers and some Christians who opposed them. Not sure about the US, but I think it's Republicans and right-wing Christians who are agin.

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Originally posted by Alt Wally:
It is curious to see there appear to be "Law and Order" liberals when it comes to hate crimes.

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Originally posted by saysay:
I think it's more that they add to the harm already being done without providing any sort of benefit or deterrent effect.

It's a bit like the support/ objection to the Californian 'yes means yes' law. Most people recognize that it's not going to do any good, and it may have a number of negative unintended consequences, and yet a lot of people support it anyway while acknowledging these facts.

It just winds up being baffling.

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Originally posted by orfeo:
On the assumption I might be one of the people this might be directed at (although I'm not all that 'liberal'), it has to do with there being a critical difference between "people are all the same" and "people are all in the same position".

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Originally posted by orfeo:

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Originally posted by Kaplan Corday:
I am sure you didn't intend it, but there is a very unpleasant eugenicist smell to this post.

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I fail to see how it can involve eugenics when I talked about skills and professions, not race, gender or anything else that is inherent to an individual.

I've encountered people who seem to think that jobs are something you inherit, but that's certainly not my view.

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Originally posted by Kaplan Corday:
Usefulness, not skills or professions, is the pertinent issue.

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Originally posted by Alt Wally:
many conservative opponents undoubtedly oppose hate crime laws out of motivations such as a visceral hatred of Homosexuals.

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Originally posted by mdijon:
On which basis we would get rid of murder charges. These are disproportionately used on the same groups and the difference between murder and manslaughter simply results in longer prison sentences which is apparently counter-productive.

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Originally posted by Alt Wally:
One of the arguments against capital punishment is that it unfairly targets minorities in its application. Do you consider that argument without merit?

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Originally posted by Alt Wally:
Would your expectation be that if captial punishment is ended as a practice due to this concern that we would be without basis to prosecute anyone for murder?

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Originally posted by mdijon:
Has anyone anywhere in the US been prosecuted for thoughts without actions?

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Originally posted by Alt Wally:
Consider the case of Matthew Lyon or Eugene V. Debs in relation to the Sedition Act of 1918. Sedition and espionage acts have raised particularly contentious arguments over first amendment rights. I don't know if these are the examples the ACLU has in mind vis-a-vis the Nation article. There are probably other ones I am not immediately calling to mind.

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Originally posted by orfeo:
setting minimum sentences is rare, at least from my knowledge. What usually happens is that a higher maximum is set.

Secondly, it's also not usual to remove discretion in sentencing.

Thirdly, I've already pointed out that basically all that most aggravated crimes involve is Parliament declaring which factors are to be taken into account instead of the common law declaring it over the centuries.

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You asked whether I was making a distinction without a difference. And then set out the basis for an answer...

If a "hate crime" law
- doesn't reduce the discretion available to the judge
- deals with more serious instances of existing crimes rather than creating a new crime (thus maintaining the principle of equality under the law)
- represents the consensus of Parliament, including the Law Lords, on what is just (rather than being a political move by the governing party, forced through on the party whip system)

Then yes there seems little or no real difference, in the UK justice system, between that and recognition of hate-motivation as an aggravating factor when justice is being dispensed.

Best wishes,

Russ
 

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Posted by Twilight (# 2832) on :
 

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Originally posted by quetzalcoatl:

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Originally posted by Doc Tor:

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Originally posted by Twilight:
I agree with Russ. I'm not for mandatory sentencing and I believe all sorts of factors should be considered by the judge at the time of sentencing. Hate Crimes add in extra jail time right off the bat, based solely on who the victim is and whether or not the prosecutor thinks the perpetrator was biased against that group. It gives less discretion to the judge, not more.

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Except that's not how it works.

You have to prove the racially-aggravated (or whatever) element to the crime to the same level of proof as you do the crime. So it's not "right off the bat".

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These laws are so commonly misrepresented, that it makes me think that the opposition to them is not legal, but political. I recall that when the Bills were going through Parliament, it was mainly right-wingers and some Christians who opposed them. Not sure about the US, but I think it's Republicans and right-wing Christians who are agin.

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Originally posted by Kaplan Corday:
Without wishing to proceed any further into DH territory, let me just say that I maintain doubts about the validity of the idea of “hate crime”, but that I do not hate homosexuals, viscerally or otherwise.

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Originally posted by mdijon:
An 1801 case? It sounds like we're pretty safe from being accused of thought crimes in the modern age then. And I'm not sure where hate crimes come in this.

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Has anyone anywhere in the US been prosecuted for thoughts without actions?

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Originally posted by Twilight:
That's why anyone who tries to point out the basic inequality of the law gets hit with the, "Yeah, but we want to send a message that ____ won't be tolerated." Putting the opposition in the position of seeming to be in favor of _____. Which is bogus.

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Originally posted by Doc Tor:

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Originally posted by Twilight:
That's why anyone who tries to point out the basic inequality of the law gets hit with the, "Yeah, but we want to send a message that ____ won't be tolerated." Putting the opposition in the position of seeming to be in favor of _____. Which is bogus.

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What you seem to be missing is that the law was unequal. It's because we left it to police officers (who have the option to arrest or not, to over-egg statements or not, choose who to interview as witnesses - or not), prosecutors (who have the option to lay higher or lower charges, accept pleas, call witnesses, cross-examine witnesses), judges (who can abandon cases, direct the jury, allow witnesses testimony or strike it from the record), and juries (all-white juries trying black people, anyone?) that tighter legislation was required.

If you don't get that, you won't get the point of hate crimes legislation.

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Originally posted by Twilight:
Hate Crimes add in extra jail time right off the bat, based solely on who the victim is and whether or not the prosecutor thinks the perpetrator was biased against that group. It gives less discretion to the judge, not more.

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Originally posted by mdijon:
An 1801 case? It sounds like we're pretty safe from being accused of thought crimes in the modern age then. And I'm not sure where hate crimes come in this.

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Originally posted by Eliab:

Neither case would be at all exceptional here. They are examples of the system working, and applying victim-specific offences sensibly and fairly. It may be (I don't know) that other country's criminal justice systems are fucked, and do not allow the same scope for judges to make such decisions. If so, that's an argument against fucked up criminal justice systems, not against hate crime legislation.

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Originally posted by Eliab:
If so, that's an argument against fucked up criminal justice systems, not against hate crime legislation.

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Originally posted by mdijon:
Although as was shown upthread your doubts about hate crimes actually generalize to doubts regarding differential sentences for killing policeman executing their duty, sentencing based on motive, differentiating between murder and manslaughter and other widely accepted aspects of many Western justice systems.

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Originally posted by Kaplan Corday:
My “doubts about hate crime” are based primarily on principles which any more or less rational and moral person holds, ie that no-one should be punished for other people’s actions, and that punishments should be based on justice and not pragmatism.

Thus, for example, if a bank robber is given a more severe sentence as a deterrent because there has been a recent spate of bank robberies, he suffers injustice on both counts.

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Originally posted by Alt Wally:
I don't know what exact instances in regards to hate crimes that concern may be about, but I certainly understand the general concern.

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Originally posted by Kaplan Corday:
My “doubts about hate crime” are based primarily on principles which any more or less rational and moral person holds, ie that no-one should be punished for other people’s actions, and that punishments should be based on justice and not pragmatism.

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Originally posted by Dafyd:
Your attempt to preemptively accuse anyone who disagrees with you of irrationality or immorality or both is noted.

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If you interpret the first principle as strictly as you need to interpret it to rule out hate crimes, you must also rule that Eichmann was only guilty of running train timetables. The actual killing was being done by other people and therefore Eichmann should not be punished for it.
That is ridiculous.

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A person's actions do not occur in a vacuum,

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Few people who object to hate crime legislation loudly protested that deterrent effects were out of order after the London riots, for example.

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The best justification for punishment, as I understand it, is that if you commit a crime as retribution you lose a certain limited number of rights, which rights include the right not to be used for deterrent purposes up to a certain point.

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The claim that there is a just penalty for any given crime seems open to highly subjective judgements.

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Originally posted by quetzalcoatl:
Bit of a tangent, but being punished for other people's actions is quite controversial in England at the moment, in relation to joint enterprise.

But now there is some concern that people are being banged up for murder, which they didn't commit personally.

Rather different from hate crime, though.

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Originally posted by Dafyd:
Your attempt to preemptively accuse anyone who disagrees with you of irrationality or immorality or both is noted.

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Originally posted by Kaplan Corday:
You don't think it irrational and immoral to punish someone for someone else's offence, or use a criterion other than justice to determine punishment?

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Originally posted by Kaplan Corday:
Which is precisely why there is a need for carefully specified penalties, as much in line with community attitudes as possible (eg no death penalty for pick-pocketing),which must be adhered to in sentencing, without any arbitrary additions to the penalties based on "highly subjective [and speculative] judgements" of how best to do some social engineering.

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Originally posted by Kaplan Corday:

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Originally posted by Dafyd:
If you interpret the first principle as strictly as you need to interpret it to rule out hate crimes, you must also rule that Eichmann was only guilty of running train timetables. The actual killing was being done by other people and therefore Eichmann should not be punished for it.
That is ridiculous.

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No, the ridiculousness lies in your attempted analogy.

Eichmann was complicit in the Holocaust crime, and anyone who is an accomplice in, say, bashing a gay man because he is gay, by holding him while he is being hit, is part of the crime in a way which someone who carries out a completely separate gay bashing is not.

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A person's actions do not occur in a vacuum,

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So an academic who writes a book arguing against the concept of private property has to share the blame for property crimes such as burglaries, because he poisoned the social atmosphere.

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The best justification for punishment, as I understand it, is that if you commit a crime as retribution you lose a certain limited number of rights, which rights include the right not to be used for deterrent purposes up to a certain point.

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This is sheer sophistry.

If you commit a crime, you deserve appropriate retribution.

End of story.

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The claim that there is a just penalty for any given crime seems open to highly subjective judgements.

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Which is precisely why there is a need for carefully specified penalties, as much in line with community attitudes as possible (eg no death penalty for pick-pocketing),which must be adhered to in sentencing, without any arbitrary additions to the penalties based on "highly subjective [and speculative] judgements" of how best to do some social engineering.

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Originally posted by Kaplan Corday:
You don't think it irrational and immoral to punish someone for someone else's offence, or use a criterion other than justice to determine punishment?

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Originally posted by Dafyd:
Let us say that a group of journalists independently take a dislike to a public figure, and maliciously run false stories. No one story has individually a detrimental effect. However, the cumulative effect is to make the public think that there is no smoke without fire.

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I notice there is no room after appropriate retribution for forgiveness.

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The end of penal justice is rehabilitation.

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Odd that you mention the death penalty for pickpocketing. In the eighteenth century, the people who thought that justice demanded retribution and nothing else were the ones defending the death penalty for minor property crimes.

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Originally posted by Kaplan Corday:

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The end of penal justice is rehabilitation.

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No it's not, it's retributive justice, but once again it's not an either/or issue, because a deserved jail sentence can be spent either wasting time, or in education and job training, which might or might not contribute to rehabilitation, but is certainly worth trying.thought that justice demanded retribution and nothing else were the ones defending the death penalty for minor property crimes.

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Originally posted by Kaplan Corday:

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Originally posted by Dafyd:
Let us say that a group of journalists independently take a dislike to a public figure, and maliciously run false stories. No one story has individually a detrimental effect. However, the cumulative effect is to make the public think that there is no smoke without fire.

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You are really scraping the bottom of the barrel.

Your example makes no sense.

If no one of the stories has a detrimental effect, then neither will their sum.

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The end of penal justice is rehabilitation.

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No it's not, it's retributive justice, but once again it's not an either/or issue, because a deserved jail sentence can be spent either wasting time, or in education and job training, which might or might not contribute to rehabilitation, but is certainly worth trying.

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Odd that you mention the death penalty for pickpocketing. In the eighteenth century, the people who thought that justice demanded retribution and nothing else were the ones defending the death penalty for minor property crimes.

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The ones defending the death penalty for minor property crimes were the ones who thought it was a deterrent, and they were wrong.

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Originally posted by Dafyd:

Let's suppose a criminal commits a crime, escapes punishment, but reforms anyway. (Imagine Tony from West Side Story survives, escapes with Maria, and sets up as youth worker helping resolve gang violence in Chicago. Or Valjean escapes from the galleys and sets up as a small town mayor.) Assuming no practical purpose of deterrent or consolation for the family of the victim is served by imprisoning him, is it just that the person be imprisoned?
I would say no. I consider the proposition that retribution necessitates some penalty for a reformed criminal to be unjust and immoral.

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Odd that you mention the death penalty for pickpocketing. In the eighteenth century, the people who thought that justice demanded retribution and nothing else were the ones defending the death penalty for minor property crimes.

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The ones defending the death penalty for minor property crimes were the ones who thought it was a deterrent, and they were wrong.

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Really? Bentham was one of the first people to argue in English that there was no retributive function to punishment, and he was a reformer and opponent of the death penalty. He was following Beccaria, who again, according to wikipedia, argued that punishment has a deterrent rather than a retributive function. Samuel Romilly, who abolished the death penalty for theft from the person, was also following Beccaria.
I think the evidence supports my contention.

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Originally posted by Kaplan Corday:
On deterrence principles, there would be nothing unjust about punishing property offences with hanging, drawing and quartering so long as it worked.

A retributive approach to property crime, on the contrary, is concerned with appropriateness and proportionality.

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Originally posted by Kaplan Corday:

quote:

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Originally posted by Dafyd:

Let's suppose a criminal commits a crime, escapes punishment, but reforms anyway. Assuming no practical purpose of deterrent or consolation for the family of the victim is served by imprisoning him, is it just that the person be imprisoned?
I would say no. I consider the proposition that retribution necessitates some penalty for a reformed criminal to be unjust and immoral.

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Instead of using fictional examples, let's stick with Eichmann.

So, if he escaped to South America, repented, and set up an orphanage, the Jews (and non-Jews interested in justice) would have had no basis for prosecuting him?

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At the moment, the Australian media are dominated by the imminent execution by Indonesia of two Australian drug smugglers.

There are widespread calls (which I support)for commutation of the death penalty to life imprisonment, but no-one is arguing that because they have (apparently) been rehabilitated, that they therefore should not be penalised at all.

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Odd that you mention the death penalty for pickpocketing. In the eighteenth century, the people who thought that justice demanded retribution and nothing else were the ones defending the death penalty for minor property crimes.

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The ones defending the death penalty for minor property crimes were the ones who thought it was a deterrent, and they were wrong.

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Really? Bentham was one of the first people to argue in English that there was no retributive function to punishment, and he was a reformer and opponent of the death penalty. He was following Beccaria, who again, according to wikipedia, argued that punishment has a deterrent rather than a retributive function. Samuel Romilly, who abolished the death penalty for theft from the person, was also following Beccaria.
I think the evidence supports my contention.

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No it doesn't, because the grassroots administration of justice at the time was not driven by the arcane and abstruse theorisings of jurists, but by a seemingly unstoppable "crime wave" caused by a number of factors, including the effects of the Industrial Revolution, which it was thought could only be controlled by savagely deterrent sentences.

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That deterrence didn't work (not that it would have been any more acceptable even if it had),was evidenced by the fact that pick-pockets worked the crowds that gathered to watch the execution of pick-pockets.

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On deterrence principles, there would be nothing unjust about punishing property offences with hanging, drawing and quartering so long as it worked.

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A retributive approach to property crime, on the contrary, is concerned with appropriateness and proportionality.

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Originally posted by Dafyd:

The claim that there is a just penalty for any given crime seems open to highly subjective judgements. If the penalty for monetary theft were simply the money stolen plus a fine of equal value that might be an objective measure. There the penalty is of the same kind as the harm caused by the crime. But to claim that there is some measure of deprivation of liberty that is objectively just restitution for theft or for murder looks like it won't stand up on examination.

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Originally posted by Dafyd:
I've cited evidence

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how would you react to the claim that the appropriate and proportional punishment for coveting someone else's property, let alone actually stealing it, is eternal torment in Hell?

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Originally posted by Kaplan Corday:

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Originally posted by Dafyd:
I've cited evidence

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The men you have cited agreed with deterrence in general, which is what I have already shown was the general attitude of the time.

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how would you react to the claim that the appropriate and proportional punishment for coveting someone else's property, let alone actually stealing it, is eternal torment in Hell?

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To me, eternal torment is an enormous problem for my faith, and one to which i have no easy answers, but for someone like yourself, who believes in "whatever it takes" practical deterrence, rather than justice and proportionality, it can pose no problem at all.

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Originally posted by Russ:
But as others have said, justice is proportionality. Justice in this context requires that criminal A gets a more severe penalty than criminal B if and only if A has committed a more serious crime (or the same crime committed in circumstances which make it a more evil act). Our sense of injustice is triggered if someone gets a relatively severe penalty for a relatively trivial crime.

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So my question for those who support hate crime laws is to come clean about whether they do so because they consider such laws just. Or whether they recognise that such laws may be unjust, but want them for another reason , e.g.
- because an unjustly-severe penalty will have a greater deterrent effect thus leading to a utilitarian greater good of the greater number
- because a little injustice in one direction will balance the scales of history which has seen great injustice in the other direction
- because justice is a myth and political expediency is all there ever was .

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Originally posted by Russ:
So my question for those who support hate crime laws is to come clean about whether they do so because they consider such laws just.

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Originally posted by Russ:
So my question for those who support hate crime laws is to come clean about whether they do so because they consider such laws just.

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Originally posted by Eliab:
...Therefore if by just punishment you include something like "proportionate to the culpability of the offender" OR "proportionate to the harm done" OR both of those, then yes, I think hate crime laws are just in principle.

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Originally posted by Eliab:
My view is that victimising someone because of their membership of a despised group is objectively morally worse than victimising them because of personal hostility.
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Originally posted by Russ:
In that case, it seems like the extra punishment you want to hand out to the anti-left-hand bigot is for not recognising or not accepting your meta-narrative that left-handers are a disadvantaged under-privileged group with special victim status. For being off-message, in other words.

Whose opinion on whose status is the important one here ?

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Originally posted by Russ:
It's a moral intuition that I don't immediately share, that I'm struggling to resolve into either
- a valid application of a moral intuition that I do share, so that I can agree, or
- a misapplication of same, so I can know why I disagree....

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Does a Man Utd supporter picking on a Man City supporter count as "victimising a despised group" ? That has the element of treating the other person as a symbol of something despised rather than as a person.

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If you believed that the left-handed members of society constitute a low-status discriminated-against group, would a corollary of that belief be that you think carrying out a criminal act on a left-hander for being a left-hander is objectively morally worse than committing the same crime against someone else ?

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Originally posted by Russ:
Does a Man Utd supporter picking on a Man City supporter count as "victimising a despised group" ?... If you believed that the left-handed members of society constitute a low-status discriminated-against group, would a corollary of that belief be that you think carrying out a criminal act on a left-hander for being a left-hander is objectively morally worse than committing the same crime against someone else ?

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Originally posted by mdijon:

It is worth reflecting on just how strange this conversation sounds to someone black who inhabits the world of discrimination and threats of violence. Its just faintly surreal that someone living alongside one can't grasp the experience of being black and threatened and draws such unlikely parallels in discussion.

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Originally posted by lilBuddha:

quote:

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Originally posted by mdijon:

It is worth reflecting on just how strange this conversation sounds to someone black who inhabits the world of discrimination and threats of violence. Its just faintly surreal that someone living alongside one can't grasp the experience of being black and threatened and draws such unlikely parallels in discussion.

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Amen.

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Originally posted by mdijon:
It is worth reflecting on just how strange this conversation sounds to someone black..

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Originally posted by Russ:
If the examples seem strange to you, it's that I'm trying to get y'all to come out with something that I can recognise as a clear and valid moral principle that can be applied with the impartiality that is proper to law.

Rather than just special pleading.

If you have a moral principle, then it applies to groups that don't engage your sympathies as well as those that do. So I think of examples that have something in common, but that you probably don't have the same sympathy with. To try to work out what principle you're working from.

If you don't have a transferrable principle, you're not arguing a position, you're arguing a prejudice...

Best wishes,

Russ

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Originally posted by mdijon:
It is worth reflecting on just how strange this conversation sounds to someone black..

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Originally posted by Russ:
If the examples seem strange to you, it's that I'm trying to get y'all to come out with something that I can recognise as a clear and valid moral principle that can be applied with the impartiality that is proper to law.

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Originally posted by Russ:
If you have a moral principle, then it applies to groups that don't engage your sympathies as well as those that do. So I think of examples that have something in common, but that you probably don't have the same sympathy with. To try to work out what principle you're working from.

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Originally posted by Russ:
If you have a moral principle, then it applies to groups that don't engage your sympathies as well as those that do. So I think of examples that have something in common, but that you probably don't have the same sympathy with.

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Originally posted by Dafyd:
I like revisionist intellectual history as much as the next person

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Originally posted by Kaplan Corday:

quote:

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Originally posted by Dafyd:
I like revisionist intellectual history as much as the next person

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Obviously.

Look up, for example, the Bloody Code, ie the system of criminal punishment in England 1688-1815, on Wikipedia, which spells out what anyone with any familiarity with the eighteenth century penal code knows: that the system was driven by the hope of deterrence.

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It contains a pertinent contemporary quote that "Men are not hanged for stealing horses,[ie justice] but that horses may not be stolen [ie deterrence]"

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Originally posted by Eliab:

Having a violent hatred of left-handers is completely unjustified. So is having a violent hatred of blacks. Neither provides any sort of reason or excuse for a criminal attack.

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The person being attacked is, in either case, wholly innocent, and deserving of protection. Both are highly blame-worthy motives.

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Violence against black people does objectively more harm to us than violence against left-handers.

Therefore racial violence is, for us, the more serious matter because it is at least as morally wrong as handedness violence, but more harmful...

...in the real world, attacking some groups contributes to serious social problems, whereas other forms of irrational violence do not to anything like the same extent.

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Originally posted by lilBuddha:
Lengths of sentences are based on harm done. Hate crimes cause more harm than the same crime without the hate. Simples.

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Originally posted by Twilight:

quote:

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Originally posted by lilBuddha:
Lengths of sentences are based on harm done. Hate crimes cause more harm than the same crime without the hate. Simples.

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Where is the proof of any of that? Where is the proof that a victim of a hate crime suffers more harm or has more fear afterward? I would think those elements would depend far more on the psychological health of the victim than whether or not he belongs to a particular group. You're saying that a black man, beaten up by a group of white racists is going to feel more fearful in the future than a white man beaten up by a group of other whites? I don't see why that's going to make much difference, I think anyone who has been beaten will be more fearful in the future.

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Originally posted by quetzalcoatl:
Yes, the law does not simply consider harm done to victims. For example, people who are killed end up equally dead, but the law does not treat them equivalently. You can compare a soldier who kills someone in combat, and who goes home and throttles his wife. Both dead people are equally dead, but the killings may be treated differently. And in English law, all manner of factors may be adduced, both as aggravation and mitigation. As to how these factors are arrived at, I don't think there is a common or simple generator.

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Originally posted by Eliab:


But suppose I'm a black man in a society where racial violence is common. I can't trade in my skin as I would my scarf. I can't associate my racial identity with only the certain times and places I'd ideally like to set aside for some leisure activity. In order to feel the ordinary degree of security other people take for granted, I'm going to have to be watching my back all the time. I'll probably want to stay in mostly-black areas, avoid taking jobs that would mean putting my physical safety at risk, be wary and suspicious around white men unless I'm with friends and we out-number them, and tend to define myself and my interests against the people who daily threaten the security of myself and my family.

I'm white. Almost certainly I'll never have to live like that. That doesn't mean I can't see that those are natural consequences of racial violence, and that they are life-affecting, even for people who are not direct victims. That's why the harm caused is worse.

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Originally posted by Dafyd:
I would certainly take Blackstone as authoritatively expounding the official justification for eighteenth century English law.

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Originally posted by Twilight:

That's part of being a woman and they are life-affecting. Yet, the man who attacks a woman on the street and steals her purse will not be charged with a hate crime.

Because you think the harm caused to someone else is more harmful than to her.

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Originally posted by Twilight:

My son is white, he is not visibly disabled, he is not gay, yet he has been badly beat up several times, bad enough to have to go to the hospital. It is a factor in his being extremely fearful, almost all the time. Yet you don't think he has suffered much harm, not like certain other people who you have selected to feel sympathetic toward.

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Originally posted by Twilight:

That you have decided that it is morally worse to hurt some able bodied adults than others and have set yourself up as the judge as to which is which just amazes me.

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Originally posted by mousethief:

quote:

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Originally posted by Twilight:

quote:

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Originally posted by lilBuddha:
Lengths of sentences are based on harm done. Hate crimes cause more harm than the same crime without the hate. Simples.

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Where is the proof of any of that? Where is the proof that a victim of a hate crime suffers more harm or has more fear afterward? I would think those elements would depend far more on the psychological health of the victim than whether or not he belongs to a particular group. You're saying that a black man, beaten up by a group of white racists is going to feel more fearful in the future than a white man beaten up by a group of other whites? I don't see why that's going to make much difference, I think anyone who has been beaten will be more fearful in the future.

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The victim of battery is not the only one whom the haters are trying to instill fear in.

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Originally posted by quetzalcoatl:
The recent deadly attacks on Jews in Europe by jihadists show how hate crime is similar to terrorism; many Jewish people have felt intimidated by these attacks. Thus, the crime extends beyond the individual, and is particularly abhorrent to society.

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Originally posted by quetzalcoatl:
This seems to amount to a different legal system.

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Originally posted by mdijon:

quote:

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Originally posted by quetzalcoatl:
This seems to amount to a different legal system.

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While I can follow the logic in the anti-hate-crime-legislation arguments, I don't understand how they can't see that they are proposing a very different basis for a legal system than the one we have.

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Originally posted by Russ:
But it does not seem to immediately follow that an additional one crime of one type is therefore a bigger deal than an extra one crime of the other type. If we're considering the incidence of one type increasing from 1 to 2 versus the incidence of the other increasing from 2001 to 2002, it's not obvious that the latter increase has a greater impact on public perception of how safe the streets are. So at one level the "greater harm" argument is clearly false; at another level you may have a valid point but you haven't spelled it out.

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Originally posted by Twilight:
Suppose you're a white woman in a society where violence against women is common. You can't trade in your gender. You'll always be physically weaker and slower than half of society, the half that is most likely to prey on your kind. You would be afraid to take certain jobs or to walk alone in certain areas.

That's part of being a woman and they are life-affecting. Yet, the man who attacks a woman on the street and steals her purse will not be charged with a hate crime.

Because you think the harm caused to someone else is more harmful than to her.

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My son is white, he is not visibly disabled, he is not gay, yet he has been badly beat up several times, bad enough to have to go to the hospital. It is a factor in his being extremely fearful, almost all the time. Yet you don't think he has suffered much harm, not like certain other people who you have selected to feel sympathetic toward.

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That you have decided that it is morally worse to hurt some able bodied adults than others and have set yourself up as the judge as to which is which just amazes me.

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Originally posted by LeRoc:
What's perhaps interesting is that a term in Dutch that is more or less equivalent to 'Hate Crime' is Misdaad tegen de maatschappij ('Crime against society').

Suppose that someone commits arson in a Mosque, and we know he did it as an attack against Muslims (for example through his Facebook postings). Not only has he damaged property, but he has also tried to hurt the ties that bind us together as various groups in this country. Usually, the judge will take this into account when determining the severity of the punishment.

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Originally posted by Kaplan Corday:

quote:

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Originally posted by Dafyd:
I would certainly take Blackstone as authoritatively expounding the official justification for eighteenth century English law.

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You are desperately trying to demonstrate that eighteenth century legal theory was retributive rather than deterrent, and you just can’t do it.

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The ones defending the death penalty for minor property crimes were the ones who thought it was a deterrent, and they were wrong.

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In Australia, eighteenth century penal policy is highly relevant to the nation’s origins as a convict colony, and you won’t find a single historian who disputes the fact that transportation in its legal (as opposed to economic and strategic) aspect was primarily deterrent.

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Originally posted by Dafyd:
If I concede desperately...

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Please. What a stupid thing to say.

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Originally posted by Russ:
But it does not seem to immediately follow that an additional one crime of one type is therefore a bigger deal than an extra one crime of the other type. If we're considering the incidence of one type increasing from 1 to 2 versus the incidence of the other increasing from 2001 to 2002, it's not obvious that the latter increase has a greater impact on public perception of how safe the streets are. So at one level the "greater harm" argument is clearly false; at another level you may have a valid point but you haven't spelled it out.

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Intent is important; provable or intended wider harm seems a legitimate aggravating factor. But you want something more...

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Originally posted by Dafyd:
I thought we were discussing the death penalty, rather than transportation.

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Originally posted by quetzalcoatl:
So is terrorism legislation unfair?

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Originally posted by lilBuddha:
Trust me, I understand the frustration, but I'm not certain this advances understanding.
In any discussion on the advantages/disadvantages of race, there will always be those in the privileged group who feel no benefit of that privilege. It can be difficult to seperate that out.
It can be very hard to see the dispassionate, general argument through the veil of personal pain.

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Originally posted by lilBuddha:
Another baby step then.
Hate crime cause more damage because they threaten more than just the individual being attacked. And they cause an additional level of fear in the person being attacked.
how an Irishman cannot see this is fairly puzzling.

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Originally posted by orfeo:
what are our law-makers supposed to do? Is it really right to say that they simply cannot send any signals whatsoever when faced with a problem that affects one bit of society more than another? Can they NEVER address racial attacks or gay-bashing?

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Originally posted by Russ:
You seem to be suggesting that there are two sorts of groups of people:
- groups where any crime committed against any member for a cause relating to the common characteristic of the group causes a significant level of fear in other members of the group

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Originally posted by Russ:

- groups where such an attack causes no significant level of fear in other members.

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Originally posted by Russ:

Ethnic minorities and sexual minorities you place in the first category. Left-handers, shy people who wear glasses, fat people, ugly people, socially-awkward people you place in the second category.

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Originally posted by Russ:

So if a schoolboy gets beaten up or a woman's car gets vandalised because that individual is believed to be gay, that's a hate crime because of the fear that this instills in the hearts of all the gay people who hear if it. But if a schoolboy gets beaten up because he's a shy nerd who wears glasses, you assume that this has no impact on all the other shy nerds who wear glasses. And if a woman's car gets vandalised because she's the sort of lonely eccentric old woman who in past times might have been burnt as a witch, then this has no impact at all on the other single old women who hear of it.

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Originally posted by Russ:

Not sure which category you put Irishmen in...

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Originally posted by Eliab:
What I thought was stupid about the comment was introducing an example of a victim of violent crime, about which I have expressed no view because I knew nothing about it, and then attributing a ludicrous opinion about it to me,

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Originally posted by Eliab:

It's impossible to argue with comments that absurd.

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Originally posted by Russ:

quote:

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Originally posted by orfeo:
what are our law-makers supposed to do? Is it really right to say that they simply cannot send any signals whatsoever when faced with a problem that affects one bit of society more than another? Can they NEVER address racial attacks or gay-bashing?

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And if some future government in the UK or elsewhere decides that the urgent problem that the country faces is a Jewish problem or an immigrant problem, and wishes to "send a signal" that these people don't belong (or perhaps should leave now before a more final solution is found ?) will you still be speaking up for the right of politicians to set aside justice in the name of effectively achieving political aims ?

Or is this a "breaking the rules is OK if you're the good guys" type of argument ?

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quote:

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Originally posted by Russ:

quote:

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Originally posted by orfeo:
what are our law-makers supposed to do? Is it really right to say that they simply cannot send any signals whatsoever when faced with a problem that affects one bit of society more than another? Can they NEVER address racial attacks or gay-bashing?

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And if some future government in the UK or elsewhere decides that the urgent problem that the country faces is a Jewish problem or an immigrant problem, and wishes to "send a signal" that these people don't belong (or perhaps should leave now before a more final solution is found ?) will you still be speaking up for the right of politicians to set aside justice in the name of effectively achieving political aims ?

Or is this a "breaking the rules is OK if you're the good guys" type of argument ?

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Depends on whether you're talking about legal rules or moral ones. Do you want my professional opinion or my personal one?
 

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Posted by mdijon (# 8520) on :
 
I don't understand what rules are supposed to be that are being broken. Are these the rules that say justice must be administered without reference to the victim?

That murder of a policeman, a jealous cuckolded husband, a drinking partner after a heavy night and a vulnerable disabled man in a hate-motivated attack must all be treated the same?

It seems to me those arguing in favour of hate-crime legislation are not arguing for breaking any rules that are not already thoroughly broken throughout the justice systems we live in.
 

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Posted by ChastMastr (# 716) on :
 
I actually do find the harsher treatment of people who kill police officers to be kind of odd. Arguably they can defend themselves better than people who don't have special training. Is it supposed to be some sort of "resisting arrest" penalty add-on?
 

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Posted by lilBuddha (# 14333) on :
 

quote:

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Originally posted by ChastMastr:
I actually do find the harsher treatment of people who kill police officers to be kind of odd. Arguably they can defend themselves better than people who don't have special training. Is it supposed to be some sort of "resisting arrest" penalty add-on?

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quote:

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Originally posted by mdijon:
I don't understand what rules are supposed to be that are being broken. Are these the rules that say justice must be administered without reference to the victim?

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Originally posted by mdijon:
I don't understand what rules are supposed to be that are being broken. Are these the rules that say justice must be administered without reference to the victim?

That murder of a policeman, a jealous cuckolded husband, a drinking partner after a heavy night and a vulnerable disabled man in a hate-motivated attack must all be treated the same?

It seems to me those arguing in favour of hate-crime legislation are not arguing for breaking any rules that are not already thoroughly broken throughout the justice systems we live in.

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Originally posted by quetzalcoatl:

Yes, I find this baffling. Are the antis proposing to treat all assaults, or all killings, as equivalent? Maybe they don't mean this - then what do they mean?

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Originally posted by Twilight:
I think things like whether the crime was racially motivated or motivated by greed or revenge or passion, can and should be considered, but only by the judge and jury as the motivation is presented in court.

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Originally posted by Twilight:
It's listing a certain type of crime right in there with first degree murder, second degree murder, manslaughter, burglary, robbery, etc. that, unlike these others, indicates a difference based on the physical traits of the victim.

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Originally posted by Twilight:
We really were on our way to a society where children grew up undefined by, and unaware of, such pointless descriptions as "races."

Then here comes Hate Crime laws and speeches about White privilege...

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Originally posted by Russ:
You seem to be suggesting that there are two sorts of groups of people:
- groups where any crime committed against any member for a cause relating to the common characteristic of the group causes a significant level of fear in other members of the group
- groups where such an attack causes no significant level of fear in other members.

Ethnic minorities and sexual minorities you place in the first category. Left-handers, shy people who wear glasses, fat people, ugly people, socially-awkward people you place in the second category.

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will you still be speaking up for the right of politicians to set aside justice in the name of effectively achieving political aims ?

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Originally posted by Twilight:
Then here comes Hate Crime laws and speeches about White privilege all meant to make us more race conscience, meant to set us back fifty years so that even before anything else is known, the criminal is going to get more time for killing a person of one race than for a killing a person of another race.

We will never get anywhere with this endless counting by color. It's all about a greater percentage of black men in prison than white men, or 70% of black women having illegitimate births verses, 27% of white women depending on which biased group wants to use statistics for their own rant. These numbers are almost always driven by economics but someone always wants to make it about race and it won't be corrected by making corrections based on race.

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Originally posted by quetzalcoatl:
And we're still getting the old chestnut, that hate crime is based on physical characteristics. I give up.

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Originally posted by Twilight:

quote:

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Originally posted by quetzalcoatl:
And we're still getting the old chestnut, that hate crime is based on physical characteristics. I give up.

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Oh you don't really want to give up do you? Not when you can "wonder," if the anti's are against anti-discrimination laws and be baffled by stuff. Why not just wonder if we're all racists and be done with it?

Tell me this, when someone is charged with a hate crime after beating up an African American while screaming that they hate black people, what would you call that if physical characteristics didn't come into it? Do you think he would be charged with a hate crime if the person had blonde hair and blue eyes? Just because they get the "races," wrong sometimes doesn't change the fact that appearance is a factor in this.

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Originally posted by mdijon:


We talked about revisionist history early - this really is as revisionist as it gets. Sure, slavery and Jim Crow were abolished but the idea that we were on the cusp of race-free utopia until hate crime legislation came along is crazy.

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quote:

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Originally posted by quetzalcoatl:

quote:

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Originally posted by Twilight:
Tell me this, when someone is charged with a hate crime after beating up an African American while screaming that they hate black people, what would you call that if physical characteristics didn't come into it? Do you think he would be charged with a hate crime if the person had blonde hair and blue eyes? Just because they get the "races," wrong sometimes doesn't change the fact that appearance is a factor in this.

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I'm just making the point that beating up a black person or a gay person, or a Jewish person, isn't hate crime. And if I beat up somebody because I thought they were Jewish, that might be a hate crime, even if they're not.

---

quote:

---

Originally posted by Palimpsest:
Originally posted by Twilight:

We will never get anywhere with this endless counting by color. It's all about a greater percentage of black men in prison than white men, or 70% of black women having illegitimate births verses, 27% of white women depending on which biased group wants to use statistics for their own rant. These numbers are almost always driven by economics but someone always wants to make it about race and it won't be corrected by making corrections based on race.

---

quote:

---

The counting by color shows that there's already a set of biases in the justice system and society at large. One approach is to ignore it and shout la-la-la it's un unbiased mechanism and that's just economics.

The reality is by looking at results, you can see what is a nominally an impartial system isn't in practice. Everyone has a right to defend themselves in court, only that requires a lawyer to do so effectively. A lot of poor people can't afford lawyers so there's meager funding for public defenders. This is a practical accommodation to the reality that if it's not done the poor are usually denied justice. Feel free to shout that this is unfair to rich people because it divides people into two economic classes. You'll be laughed at.

---

quote:

---

Your theory that there was a period of racial equality that is now being ruined by laws which target certain classes is ahistorical. In the U.S. The first laws to get passed by Black people were the anti-lynching laws. This dealt with a common violence that was very largely directed toward Blacks and the occasional Jew. Was this remedy a violation of your desired progress toward blind equality?

---

quote:

---

I'm fascinated to learn that the great disparity between violence toward gay people because they are gay, and violence toward straight people because they are straight is somehow due to economics. This is nonsense.

---

quote:

---

Originally posted by lilBuddha:
The U.S. never passed anti-lynching laws. I am going to post a link which is worksafe, but contains very disturbing images.
Wikipedia lynch law page.
What turned the tide was civil rights legislation. Which, in regards to lynching, was adding an additional penalty to something already illegal.

---

quote:

---

Originally posted by Palimpsest:

quote:

---

Originally posted by lilBuddha:
The U.S. never passed anti-lynching laws. I am going to post a link which is worksafe, but contains very disturbing images.
Wikipedia lynch law page.


What turned the tide was civil rights legislation. Which, in regards to lynching, was adding an additional penalty to something already illegal.

---

My point was that your statement that things were just getting better by themselves before Hate Crimes legislation is not true. You turned that into a claim that I said you were pro-lynching.

Lynching was illegal, but in practiced tolerated. So are those Civil Rights laws bad because they specify things like race in the same way Hate Crimes laws do? Was this an abandonment of your requirement that laws be group neutral?

---

quote:

---

Originally posted by mousethief:
You're equating the government trying to stop the targeting of minorities with the government targeting a minority? That's crazy talk.

---

quote:

---

Originally posted by Dafyd:
Speaking as a shy socially awkward person who wears glasses, I do not feel myself at any particular risk of violence or discrimination. I really don't think it's comparable with the risks of gay-bashing... ..it's silly to imply that somehow gay people face no more risk of violence than people in glasses.

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quote:

---

The idea that advocating legislation against hate crimes is setting aside justice in the name of effectively achieving political aims contains so many questionable if not silly assumptions that I'm not sure where to start.

---

quote:

---

Justice is a political aim. In any sense of political aim relevant to this conversation, it's arguably the only political aim.

---

quote:

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Originally posted by lilBuddha:
we continue to engage with KC
one is resorting to time-travel, even.

---

quote:

---

Originally posted by Palimpsest:

quote:

---

Originally posted by Palimpsest:

quote:

---

Originally posted by lilBuddha:
The U.S. never passed anti-lynching laws. I am going to post a link which is worksafe, but contains very disturbing images.
Wikipedia lynch law page.


What turned the tide was civil rights legislation. Which, in regards to lynching, was adding an additional penalty to something already illegal.

---

My point was that your statement that things were just getting better by themselves before Hate Crimes legislation is not true. You turned that into a claim that I said you were pro-lynching.

Lynching was illegal, but in practiced tolerated. So are those Civil Rights laws bad because they specify things like race in the same way Hate Crimes laws do? Was this an abandonment of your requirement that laws be group neutral?

---

---

quote:

---

Originally posted by Russ:

quote:

---

Originally posted by mousethief:
You're equating the government trying to stop the targeting of minorities with the government targeting a minority? That's crazy talk.

---

Not crazy at all. There's a distinction between process and content. It's perfectly rational to argue that it's "bad process" to set a precedent of politicians getting too hands-on with the criminal justice system, regardless of whether you agree with the content - the direction in which any particular politician wishes to distort it.

If it's a constitutionally licit use of power for one party to bend the justice system one way it's equally licit when the other party bend it the other way...

---

quote:

---

Originally posted by Kaplan Corday:

I thought I had become fairly hardened to the prevalence of historical illiteracy, but I haven’t until now come across anyone who didn’t know the difference between history and “time travel”.

---

quote:

---

Originally posted by Kaplan Corday:

If you cannot grasp the point of an argument, then it is better to remain silent

---

quote:

---

Originally posted by Russ:
So why does legislation against hate crime have to list the hate-categories to which it applies ? Why can't we just all agree that intimidating a wider group of people than just the victim of the crime is an aggravating factor, leading to a more severe sentence if the prosecution can demonstrate either an intention to so intimidate or the fact of intimidation resulting from that specific crime ? Why bring minorities into it at all ?

---

quote:

---

Originally posted by Twilight:
your anger at the very suggestion that things might be getting better, makes me wonder why you want to have such a negative view of race relations. Reading your posts is like reading a Toni Morrison novel.

---

quote:

---

Originally posted by Twilight:
We really were on our way to a society where children grew up undefined by, and unaware of, such pointless descriptions as "races."

---

quote:

---

Originally posted by Russ:
Why can't we just all agree that intimidating a wider group of people than just the victim of the crime is an aggravating factor, leading to a more severe sentence if the prosecution can demonstrate either an intention to so intimidate or the fact of intimidation resulting from that specific crime ? Why bring minorities into it at all ?

---

quote:

---

Originally posted by Russ:
If those supporting such legislation didn't make arguments that sounded like that's what they want to do then maybe fewer of the sceptics would think that that's what such legislation does.

---

quote:

---

Originally posted by Russ:
So why does legislation against hate crime have to list the hate-categories to which it applies ? Why can't we just all agree that intimidating a wider group of people than just the victim of the crime is an aggravating factor, leading to a more severe sentence if the prosecution can demonstrate either an intention to so intimidate or the fact of intimidation resulting from that specific crime ? Why bring minorities into it at all ?

---

quote:

---

quote:

---

Originally posted by Dafyd:
The idea that advocating legislation against hate crimes is setting aside justice in the name of effectively achieving political aims contains so many questionable if not silly assumptions that I'm not sure where to start.

---

If those supporting such legislation didn't make arguments that sounded like that's what they want to do then maybe fewer of the sceptics would think that that's what such legislation does.

---

quote:

---

quote:

---

Justice is a political aim. In any sense of political aim relevant to this conversation, it's arguably the only political aim.

---

That sounds like you mean that there's no such thing as objective justice, as something that people of different political outlooks can agree on. That "justice" is nothing more than a word people use to describe their preferred political outcomes. Is that what you mean ? Does an unjust policy in your dictionary mean no more than a policy you don't happen to agree with ?

---

quote:

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The extreme case of injustice might be if the state were to execute someone they knew to he innocent, for the sake of trying to secure some good consequence (like an end to widespread rioting in which multiple lives were being lost). What name would you give to the value that is being sacrificed for a supposedly-greater good in that instance. Not asking whether you approve, just what you call it if not "justice" ?

---

quote:

---

Originally posted by orfeo:
Do you think that the written law should be SO blind to its own society that it doesn't notice which groups are in fact being targeted most frequently and do something about it?

---

quote:

---

Originally posted by Russ:

quote:

---

Originally posted by orfeo:
Do you think that the written law should be SO blind to its own society that it doesn't notice which groups are in fact being targeted most frequently and do something about it?

---

Basically, yes. The politicians should notice and do something. The law should be blind and impartial and impose sentences that are proportional to the moral seriousness of the offence. Different roles.

---

quote:

---

Originally posted by Russ:

But let the judges judge on the inherent seriousness of the particular offence.

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quote:

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Originally posted by Russ:
But let the judges judge on the inherent seriousness of the particular offence.

---

quote:

---

Originally posted by lilBuddha:

quote:

---

Originally posted by Kaplan Corday:

If you cannot grasp the point of an argument, then it is better to remain silent

---

The point, if I can state it simply enough, is that moral comparisons across different eras are problematic.
As is comparing deterrence between different types of crime.

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quote:

---

Originally posted by quetzalcoatl:
Are the antis proposing to treat all assaults, or all killings, as equivalent?

---

quote:

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Originally posted by Kaplan Corday:
I would want them (assuming they had been found guilty in a fair trial) to receive no more or less than the prescribed penalty for the deliberate murder of another human being.

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quote:

---

The idea that justice is blind refers to defendants not victims, doesn't it? For example, both rich and poor are supposed to obtain the same degree of justice, if they are accused of a crime. To equalize all victims would be bizarre.

---

quote:

---

Originally posted by L'organist:
but that is a very different thing from saying that some victims are somehow more 'deserving' of their victimhood than others.

---

quote:

---

Originally posted by quetzalcoatl:
Are the antis proposing to treat all assaults, or all killings, as equivalent?

---

quote:

---

Originally posted by Kaplan Corday:
Pretty much, yes, because the value of one human life is equivalent to the value of any other human life...

To make it even more concrete, a member of Boko Haram who kills a Christian out of hatred for Christians in general, and out of a desire to terrorise Christians, and whose action does indeed cause Christians to flee that area, should receive no greater penalty than if they had killed another Boko Haram member in order to steal their property.

---

quote:

---

Originally posted by L'organist:
posted by quetzlcoatl

quote:

---

The idea that justice is blind refers to defendants not victims, doesn't it? For example, both rich and poor are supposed to obtain the same degree of justice, if they are accused of a crime. To equalize all victims would be bizarre.

---

Yes, the idea that justice is 'blind' does indeed refer to those accused of crime.

But there has to be some equality for victims; otherwise you land yourself in the position of saying that the murder of, say, a 20 year old EDL supporting drug pusher is less important than that of a 35 year old mother of four children. These two victims must be seen as being equal in their victim status, otherwise you're saying that to kill one person is less heinous that another.

For the people related to the two victims their loss is equally unfair, unexpected and unjust. To say otherwise is to make a value judgement of the most crass and obtuse kind.

It may be decided that there are different scales of homicide - as in the system in the US with its degrees - but that is a very different thing from saying that some victims are somehow more 'deserving' of their victimhood than others.

To put into brutal context: part of the ongoing problem with institutional failure to act on grooming of underage girls is that some were seen as being somehow complicit or deserving of their fate - are you saying that is fair?

---

quote:

---

Originally posted by Kaplan Corday:

quote:

---

Originally posted by quetzalcoatl:
Are the antis proposing to treat all assaults, or all killings, as equivalent?

---

Pretty much, yes, because the value of one human life is equivalent to the value of any other human life.

---

quote:

---

I would want them (assuming they had been found guilty in a fair trial) to receive no more or less than the prescribed penalty for the deliberate murder of another human being.

---

quote:

---

Originally posted by Russ:
The politicians should notice and do something. The law should be blind and impartial and impose sentences that are proportional to the moral seriousness of the offence.

---

quote:

---

Originally posted by quetzalcoatl:
I thought that moral seriousness is one of the factors behind hate crime legislation. Doesn't society (and Parliament, in a British context), find such crimes abhorrent?

---

quote:

---

Originally posted by L'organist:
It may be decided that there are different scales of homicide - as in the system in the US with its degrees - but that is a very different thing from saying that some victims are somehow more 'deserving' of their victimhood than others.

---

quote:

---

Originally posted by quetzalcoatl:
I thought that moral seriousness is one of the factors behind hate crime legislation. Doesn't society (and Parliament, in a British context), find such crimes abhorrent?

---

quote:

---

Originally posted by lilBuddha:

quote:

---

Originally posted by Russ:

But let the judges judge on the inherent seriousness of the particular offence.

---

Once more for clarity, we tried that, it did not work.

---

quote:

---

Originally posted by Dafyd:
]What is the something that the politicians are to do that doesn't involve the law? Stand up and make stern speeches saying they jolly well don't approve?

---

quote:

---

Originally posted by Russ:

quote:

---

Originally posted by quetzalcoatl:
I thought that moral seriousness is one of the factors behind hate crime legislation. Doesn't society (and Parliament, in a British context), find such crimes abhorrent?

---

Is that how you decide what's moral ? Take a vote on it ?

---

quote:

---

Originally posted by Russ:

Does being unsuccessful in asking nicely for something make it OK to steal it ?

---

quote:

---

Originally posted by Russ:

So why on earth should you think that an unjust legal process can be made morally licit by problems encountered in implementing a just process ?

---

quote:

---

Originally posted by Russ:

Whereas punishing those you happen to catch more severely than their offence warrants,

---

quote:

---

Originally posted by orfeo:
Judges judge on the inherent seriousness of the particular example of the commission of an offence.

They do not judge the inherent seriousness of an offence. They just don't. No judge has ever ruled on whether or not the maximum penalty for an assault should be lower or higher than the maximum penalty for not having a valid motor tax disc. Deciding that question is absolutely and unequivocally the role of the legislature.

---

quote:

---

Originally posted by Russ:

quote:

---

Originally posted by quetzalcoatl:
I thought that moral seriousness is one of the factors behind hate crime legislation. Doesn't society (and Parliament, in a British context), find such crimes abhorrent?

---

Is that how you decide what's moral ? Take a vote on it ?

---

quote:

---

Originally posted by Russ:
If the argument is that many "gay-bashing" muggings (to take one example) are worse than the average mugging because
- being attacked with hate is worse for the victim, and/or
- a whole group of "indirect victims" is intimidated thereby

then I don't see why the law shouldn't address these aggravating factors directly. Why not make that the element that triggers the possibility of the more serious penalty ?

Thus avoiding the potential twin injustices of
- over-punishing a criminal who deliberately picked a gay victim but attacked him without hate in a way that didn't intimidate others
- under-punishing a criminal who employed that aggravated level of hate or intimidation against someone fat, elderly, left-handed etc - groups that are not recognised political minorities.

Isn't that the important point ?

Best wishes,

Russ

---

quote:

---

Originally posted by Russ:

quote:

---

Originally posted by quetzalcoatl:
I thought that moral seriousness is one of the factors behind hate crime legislation. Doesn't society (and Parliament, in a British context), find such crimes abhorrent?

---

Is that how you decide what's moral ? Take a vote on it ?

---

quote:

---

Originally posted by Russ:

When I read in a newspaper that someone has been put in prison, I want it to be because he or she has done something sufficiently evil that they deserve to be in prison. I don't want the direct cause of their being in prison to be that some politician thought it would improve his or her chances of re-election.

The good and bad things about our system of governance is something of a tangent, and I'd rather not go there.

---

You just went there. In a democratic society we vote on how to deal with moral issues. It's a very imperfect system.

It's unfortunate when politicians pander to an electorate by passing bad laws. The drug laws in the United States are an example. We live with the excesses of the system and hope that we can elect statesmen and not demagogues. Failing that, we hope that there's enough diverse parties that a standoff is achieved. But if that's your issue, it's not just hate crimes, it's all legislation that has this problem.
 

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Posted by orfeo (# 13878) on :
 
I must be more in the tune with the zeitgeist than I imagined. I honestly had no idea when I wrote my last couple of posts earlier today that this was happening in a courtroom about 15 minutes drive away.
 

---

Posted by Kaplan Corday (# 16119) on :
 

quote:

---

Originally posted by Dafyd:
A retributivist theory of justice, setting aside the lex talionis or some form of hyper-Kantianism, might well be even more sensitive to the motivation of the wrongdoer than a deterrent theory of justice. If retribution is supposed to be proportional to culpability, then given that most moral systems believe that motivtion is a large factor in culpability, it follows that retributive theorists should consider motivation to be as large or a larger factor in sentencing than the value of the wrong actually done.

---

quote:

---

Originally posted by Kaplan Corday:

quote:

---

Originally posted by Dafyd:
A retributivist theory of justice, setting aside the lex talionis or some form of hyper-Kantianism, might well be even more sensitive to the motivation of the wrongdoer than a deterrent theory of justice. If retribution is supposed to be proportional to culpability, then given that most moral systems believe that motivtion is a large factor in culpability, it follows that retributive theorists should consider motivation to be as large or a larger factor in sentencing than the value of the wrong actually done.

---

You're confusing legality and morality.

If a group of young men are horsing around and one of them impulsively throws a brick through a shop window, he will receive the same legal penalty as someone who did it cold-bloodedly because he disliked the shop-keeper, even though arguably from a strictly moral point of view the latter is more culpable than the former.

---

quote:

---

Originally posted by lilBuddha:
Hate crime laws are just because two crimes are being committed. The assault/murder/etc. against the direct victim and the fear it installs, and is intended to installin people of similar makeup to the victim.

---

quote:

---

Originally posted by Dafyd:
A retributivist theory of justice, setting aside the lex talionis or some form of hyper-Kantianism, might well be even more sensitive to the motivation of the wrongdoer than a deterrent theory of justice. If retribution is supposed to be proportional to culpability, then given that most moral systems believe that motivtion is a large factor in culpability, it follows that retributive theorists should consider motivation to be as large or a larger factor in sentencing than the value of the wrong actually done.

---

quote:

---

Originally posted by Kaplan Corday:
You're confusing legality and morality.

If a group of young men are horsing around and one of them impulsively throws a brick through a shop window, he will receive the same legal penalty as someone who did it cold-bloodedly because he disliked the shop-keeper, even though arguably from a strictly moral point of view the latter is more culpable than the former.

---

quote:

---

Originally posted by Russ:
Whereas punishing those you happen to catch more severely than their offence warrants, as a means of trying to deter those you can't catch, is a judicial response that treats them as a means to an end. It's not just.

---

quote:

---

Originally posted by Kaplan Corday:

quote:

---

Originally posted by lilBuddha:
Hate crime laws are just because two crimes are being committed. The assault/murder/etc. against the direct victim and the fear it installs, and is intended to installin people of similar makeup to the victim.

---

You're begging the question.

The issue under discussion is whether or not trying to instil (not install) fear is, or should be, in fact a "crime".

For example it is not - and presumably no-one on the Ship thinks it should be - a crime for Marxist firebrands to threaten the bourgeoisie with a bloody revolution which will deprive them of their property, and possibly their liberty and even lives.

---

quote:

---

Originally posted by Kaplan Corday:

quote:

---

Originally posted by Dafyd:
A retributivist theory of justice, setting aside the lex talionis or some form of hyper-Kantianism, might well be even more sensitive to the motivation of the wrongdoer than a deterrent theory of justice.

---

You're confusing legality and morality.

If a group of young men are horsing around and one of them impulsively throws a brick through a shop window, he will receive the same legal penalty as someone who did it cold-bloodedly because he disliked the shop-keeper, even though arguably from a strictly moral point of view the latter is more culpable than the former.

---

quote:

---

Originally posted by Kaplan Corday:
For example it is not - and presumably no-one on the Ship thinks it should be - a crime for Marxist firebrands to threaten the bourgeoisie with a bloody revolution which will deprive them of their property, and possibly their liberty and even lives.

---

quote:

---

Originally posted by Karl: Liberal Backslider:

quote:

---

Originally posted by Kaplan Corday:

quote:

---

Originally posted by lilBuddha:
Hate crime laws are just because two crimes are being committed. The assault/murder/etc. against the direct victim and the fear it installs, and is intended to installin people of similar makeup to the victim.

---

You're begging the question.

The issue under discussion is whether or not trying to instil (not install) fear is, or should be, in fact a "crime".

For example it is not - and presumably no-one on the Ship thinks it should be - a crime for Marxist firebrands to threaten the bourgeoisie with a bloody revolution which will deprive them of their property, and possibly their liberty and even lives.

---

Actually, if the threats are credible, then it might well be a crime. Threats to kill certainly are.

---

quote:

---

Originally posted by Kaplan Corday:
If a group of young men are horsing around and one of them impulsively throws a brick through a shop window, he will receive the same legal penalty as someone who did it cold-bloodedly because he disliked the shop-keeper, even though arguably from a strictly moral point of view the latter is more culpable than the former.

---

quote:

---

Originally posted by quetzalcoatl:
There seems to be a parallel world going on in this thread, in which the antis seek to equalise crimes, so that motivation, effects on the victims, and so on, are ignored. Then usually, someone else says, it doesn't work like that.

---

quote:

---

Originally posted by quetzalcoatl:
There seems to be a parallel world going on in this thread,

---

quote:

---

Originally posted by quetzalcoatl:
There seems to be a parallel world going on in this thread, in which the antis seek to equalise crimes, so that motivation, effects on the victims, and so on, are ignored. Then usually, someone else says, it doesn't work like that.

---

quote:

---

Originally posted by Kaplan Corday:
[QUOTE]Originally posted by lilBuddha:
Hate crime laws are just because two crimes are being committed. The assault/murder/etc. against the direct victim and the fear it installs, and is intended to installin people of similar makeup to the victim. [/QUOTE

The issue under discussion is whether or not trying to instil (not install) fear is, or should be, in fact a "crime".

---

quote:

---

Originally posted by Eliab:

quote:

---

Originally posted by quetzalcoatl:
There seems to be a parallel world going on in this thread, in which the antis seek to equalise crimes, so that motivation, effects on the victims, and so on, are ignored.

---

The same physical act - causing icky medical waste to be dumped on the street - can be an utterly repugnant crime warranting imprisonment, or a pardonable failing not deserving of punishment at all, or anything in between, and the ONLY difference is the offender's motivation.

Is anyone really saying that the offence should be treated exactly the same regardless of motivation?

---

quote:

---

Originally posted by quetzalcoatl:
Interesting case in the UK today, where a chemistry teacher was jailed, as he was planning to go to Syria.

I think these cases are arousing some disquiet, when there appears to be no violence committed, but presumably, an intention to do so.

I suppose they are justified as the only way to stop people going to Syria. But you could argue that it's getting close to thoughtcrime.

---

quote:

---

Originally posted by lilBuddha:

Hate crime laws exist to make sentencing commensurate with the crime.

---

quote:

---

The bourgeoisie are not in current threat, so the crime of the Marxists would simply be inciting violence.

---

quote:

---

Originally posted by Dafyd:
If legality isn't based on moral desert, but on legal desert, why may not considerations such as deterrence or rehabilitation enter into legal desert?

---

quote:

---

Originally posted by lilBuddha:
Ladies and Gentlemen, Osmium has been dethroned.

---

quote:

---

Originally posted by Kaplan Corday:

quote:

---

Originally posted by Dafyd:
If legality isn't based on moral desert, but on legal desert, why may not considerations such as deterrence or rehabilitation enter into legal desert?

---

As far as possible, legality should be based on moral desert.

If it is morally wrong to destroy someone else's property, then it should be legally wrong to smash someone's shop window.

---

quote:

---

This isn't always easy to do, but it is infinitely preferable, for all its untidiness, to a deterrence theory of punishment which cannot show why it is wrong to publicly torture someone to death for smashing a shop window, as long as there is a fair chance of its putting off other potential smashers.

---

quote:

---

Deterrence and rehabilitation cannot "enter into legal desert" because "desert" implies justice, and both these concepts, pleasing as they are are when they (unpredictably)happen as a by-product of punishment, have nothing to do with justice.

---

quote:

---

Originally posted by lilBuddha:
Ladies and Gentlemen, Osmium has been dethroned.

---

quote:

---

Originally posted by Kaplan Corday:

quote:

---

Originally posted by lilBuddha:

Hate crime laws exist to make sentencing commensurate with the crime.

---

You're begging the question again.

---

quote:

---

Originally posted by Barnabas62:

quote:

---

Originally posted by lilBuddha:
Ladies and Gentlemen, Osmium has been dethroned.

---

You can say "that is a dense post", but not "you are a dense Shipmate". Personally, I'm not clear which of those two meanings to apply to your comparison but it seems a good idea to remind you and everyone else where the line is. And of course Hell is always available.

Barnabas62
Purgatory Host

---

quote:

---

Originally posted by Doc Tor:
There isn't an abstract concept of jurisprudence out there that we all draw on.

---

quote:

---

Originally posted by orfeo:
PS The BBC news report I found says that he actually admitted to 2 counts of "engaging in conduct in preparation of terror acts".

The idea of "engaging in conduct" is pretty much to rule out just thinking about it. But if he admitted his guilt there really isn't much scope for exploring just what is sufficient conduct.

---

quote:

---

Originally posted by ChastMastr:

quote:

---

Originally posted by Doc Tor:
There isn't an abstract concept of jurisprudence out there that we all draw on.

---

Well, I believe there is, but we are trying to aim for genuine Justice as best we can, and apply it as is best appropriate in civil society.

---

quote:

---

Originally posted by ChastMastr:

quote:

---

Originally posted by Doc Tor:
There isn't an abstract concept of jurisprudence out there that we all draw on.

---

Well, I believe there is, but we are trying to aim for genuine Justice as best we can, and apply it as is best appropriate in civil society.

---

quote:

---

Originally posted by Dafyd:
A retributive theory of punishment thinks that punishment suspends the normal rules of how to treat people.

---

quote:

---

In particular, it is hard to express a rehabilitative theory without a concept of desert.

---

quote:

---

Originally posted by orfeo:
The entire point of different offences having different maximum penalties is to reflect the views of the legislature, and by extension the views of the society they represent and who elected them, as to which offences are more serious.

---

quote:

---

Originally posted by Kaplan Corday:

quote:

---

Originally posted by Dafyd:
A retributive theory of punishment thinks that punishment suspends the normal rules of how to treat people.

---

No it doesn't.

For a start, it is "normal" to try to treat people in accord with justice and desert, not merely on utilitarian grounds.

Secondly, if by "normal" you mean a hope that a penalty will deter as well as punish, then sure, of course anyone will hope that that happens, and it sometimes does, but it must not be the first consideration in a legal system.

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In particular, it is hard to express a rehabilitative theory without a concept of desert.

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On the contrary, it is all too easy.

A rehabilitative theory can jettison all idea of personal autonomy, free will, guilt, desert and justice, and simply treat the subject as a maladjusted, inadequately socialised individual who needs to be conditioned into adopting different attitudes before being released.

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That doesn't mean that rehabilitation, in the usual usage of the word, can't accompany punishment, and it is just common sense to have educational and vocational facilities in jails, on the off chance that they might do some good.

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Originally posted by Russ:

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Originally posted by orfeo:
The entire point of different offences having different maximum penalties is to reflect the views of the legislature, and by extension the views of the society they represent and who elected them, as to which offences are more serious.

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That's half the story. The other half is about the moral duty on those who write the laws and make the judgments to try to ensure that those laws and judgments comply with "natural law" (also known as objective morality or capital-J Justice). Whether or not it's popular to do so.

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If you omit that half of the story, it sounds like you believe in vox populi, vox Dei - the doctrine that there is no value system by which the consensus of a society can be judged.

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So that, for example, if a slave-owning society has a law that a man can do what he wishes with his own slave, up to and including torture and murder, then as long as that law accurately reflects the consensus of that society, that's a good law.

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I don't think you believe that. But that seems to be the logical conclusion from the argument you're making.

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I agree with Dafyd's point that Justice doesn't dictate the exact penalty for every crime. There's a lot of scope for particular societies to decide, for example, that crimes against property are more or less serious relative to crimes of inflicting physical pain or crimes against the reputation of individuals.

But I'm arguing that there is a point where people of goodwill should stand up to the consensus of society and say "no this isn't right".

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And that there are some ways of framing and interpreting a hate crime law - e.g ways that make it a bigger crime for a straight person to assault a gay person than for a gay person to assault a gay person - which cross that line and are not Just.

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It may be that the particular form of hate crime law that you favour doesn't offend against Justice in that way. But arguing that it doesn't cross that line is a different thing from trying to argue the line out of existence...

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Originally posted by lilBuddha:
Russ,

Have you been following the Ferguson thread? Especially the Justice Departments findings just released? Notably regarding
this judge and the collusion with the city to target black people. And this is despite safeguards meant to avoid such. And you would allow more discretion on the part of judges?

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Originally posted by Dafyd:
I think it is difficult to express such a theory coherently without using some thinly disguised substitute for desert. The theorist could say that the subject warrants treatment, and that treatment should stop when the subject ceases to warrant it, but the theorist is basically using 'warrant' in a sense that means 'deserve'.

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(Perhaps the advocates of the continuance of unlawful detention in Guantanamo Bay are the only real examples; and even they tend to mix up deterrent arguments with claims that the unfortunates deserve it anyhow.)

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If you think rehabilitation is a dangerous and dehumanising goal,

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Originally posted by orfeo:
The reason we use consensus is because it's better than any of the other methods for being led astray by the deafness of any particular person to God's will.

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Originally posted by quetzalcoatl:
This discussion reminds me of Churchill - democracy is complete crap, until you look at all the other systems.

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Originally posted by orfeo:
Suggesting I lack integrity because I responded to what you actually said, instead of what you now think you meant to say, is just flat out rude.

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Originally posted by Russ:
And I would hope that such principles as
- not punishing one person for what another has done
- not punishing one person more than another for the same crime in the same circumstances
are sufficiently widely-held in our society to qualify as a "general consensus".

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Originally posted by orfeo:

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Originally posted by quetzalcoatl:
This discussion reminds me of Churchill - democracy is complete crap, until you look at all the other systems.

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Yup.

I know that this board, with its Christian background, has plenty of people on it who believe in some kind of external, objective notion of Justice, or of natural law.

Let me be up front about it. I don't believe in any such thing these days in any practical sense. This doesn't mean I don't believe in God or in some kind of morality, but I simply don't see how any such system can sensibly be applied to laws, because (1) laws apply across the whole of society, and (2) it's just completely, utterly impossible to get the whole of society to agree to the content of this "natural law" beyond a few platitudes that aren't very helpful - and even they'll you'll be pushing your luck to get complete agreement.

Even if you line up 10 people who all nod and agree that yes, there's such a thing as natural law and it's objective... start asking them questions about the content of natural law and they'll have descended into a fight within half an hour.

If anything, the Ship of Fools is the place where I've learned just how many different things people can believe that God has said. Which is all well and good so long as one is just expressing opinions and then moving back into one's own personal universe, but is completely impossible to work with as a basis for rules.

So what's left? I think democracy is really the only way to work a system so that as many people as possible within society are reasonably happy with legal outcomes. It's a lot more complex than just being a simple "majority rules" on every single issue and case, because there's a complex web of interactions and decisions at different levels, and constantly shifting balances. But basically, we have a system that survives because most people are sufficiently happy with it. If people aren't sufficiently happy with the system, what results is protests, disobedience and ultimately revolution.

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Originally posted by Kaplan Corday:

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Originally posted by Dafyd:
I think it is difficult to express such a theory coherently without using some thinly disguised substitute for desert. The theorist could say that the subject warrants treatment, and that treatment should stop when the subject ceases to warrant it, but the theorist is basically using 'warrant' in a sense that means 'deserve'.

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Not necessarily at all.

"Warrant" can simply mean that the subject now thinks and acts in accord with the theorist's criteria for social conformity, psychological "normality", or whatever.

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