Newsgroups: bit.listserv.politics
Date:         Wed, 30 Dec 1992 11:25:43 EST
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Hateful Penalties, some more

From:         Andy Freeman <andy@SAIL.STANFORD.EDU>

>>>I'm trying to find out what goal the "hate crimes deserve more severe
>>>sentences than other intentional acts" folks have.

>>To punish more severely those crimes they think are more heinous.

>Is this Jamie's goal, or just the goal he thinks that legislators
>may have had?  (As I remember, Jamie likes hate-crime enhancements.)

I'd better clear this up.

Actually, I don't see what difference it makes whether *I* like
the hate speech enhancements or not. At least it doesn't matter
to a real argument. It might matter to someone whose main
goal is to try to convict my personal likes.

But I will reveal my preferences anyway.

I have not endorsed hate crime enhancements. However,
I do not think they are unconstitutional, either.

So, I think it would be a mistake for the Supreme Court
to strike them down.

Not everything that is bad is unconstitutional. I think a
regressive income tax would be bad, but I don't think it
would be unconstitutional.

But many, most, policies that violate individual rights
*are* unconstitutional. That's because, like Rasputin,
the United States is blessed with an unusually strong
constitution. (That's only by-the-way, but so is this
whole explanation.)

>"Heinous" = "hatefully or shockingly evil, abominable" according to my
>Funk and Wagnalls.  (That's an archaic generic term for reference
>collection for you young'ns.)

>What are we doing by punishing heinous crimes more severely other than
>satisfying a thirst for revenge?  (I note that capital punishment
>isn't the hate-crime sentence enhancement under discussion, so maybe
>there isn't a problem here.)

It is general penal practice to punish more heinous crimes more
severely. Unless that pervasive aspect of criminal justice
is unconstitutional, no one can prove that a punishment
is unconstitutional merely by showing that it punishes
more heinous crimes more severely.

But, as readers cannot help but recall, I have already said
that I might be sympathetic to an argument against the
Wisconsin enhancements based on the "cruel and unusual"
clause. Since no such argument has been given, the Supreme
Court won't consider it. (Well, they might, but not likely.)

>Hmm.  So maybe we need a supporter to tell us why they're good.  Jamie
>doesn't seem all that interested in doing so.

Right. I'm not interested in telling you why they're good. I'm
interested in telling you why they are not unconstitutional.

>>I don't see why it matters whether the calculation AIMS
>>at death or not.

>Given Jamie's model, it matters because worrying about some costs and
>benefits does not imply worrying about the relevant costs and
>benefits.  The criminally negligent may well be worrying about some
>costs and benefits - how about some evidence showing that they're
>worrying about the death costs and benefits?

I'm not sure how you mean this.
It doesn't matter whether they are "worrying" about the
death costs and benefits. It matters whether they are
worrying about the costs and benefits to themselves.
Whether a punishment deters depends on whether potential
criminals think about the costs and benefits to themselves
in advance.

[Somewhat confusing exchange deleted and postponed for another
post.]

>I don't think we should - that's why I don't use purple cow examples
>like "crime of passion".  (Reminder: "crime of passion" suggests that
>an ordinary person suddenly snapped and commits a severe crime of
>violence.  It turns out that that doesn't happen, at least in the US.
>The only people who "get mad and kill" have a history of previous
>violent activity.  Ordinary people, who don't have that history, don't
>commit serious violence when they get mad.  Lots of things are
>possible, but only a few happen often enough to worry about.)

First, I don't believe I used the expression "crime of passion,"
so it isn't relevant what it suggests.

Second, I don't see why it matters whether the criminal is
an "ordinary person" or a "person with a history of
criminal activity." What matters, it seems to me, is whether
the criminal pre-meditated the crime, whether he thought
about its consequences and esp. its consequences for HIM.

My claim was that for criminals who DON'T think about their
crimes in that way, deterrence doesn't make a whole lot of
sense, and especially, trying to increase deterrence by
increasing the penalty doesn't make much sense.

Jamie
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