Tuesday, March 09, 2010
Alaska Voices Columnist Kevin Clarkson Decries SB202, Senator Bettye Davis' Proposed Hate Crimes Legislation
Alaska State Senator Bettye Davis' proposed hate crime bill, SB202, received a hearing before the Senate Judiciary Committee on March 8th, 2010. The legislative journal does not yet show whether or not the committee decided to push it onward to the full Senate or to sit on it.
But one influential voice in Anchorage does not hesitate to sound off on the bill. In a column entitled "Are Crime Victims Equal?", Alaska Voices columnist Kevin Clarkson, a lawyer by trade, decries the bill as promoting preferential victimhood. Under SB202, some victims would be more equal than others.
SB202 would bump crimes motivated by hate, prejudice, or bias one notch higher than the corresponding crime with no hate motivation in Alaska's six-tier crime classification system. Thus, a person would commit the crime of motivation by prejudice, bias, or hatred “if the person commits a crime . . . and the person knowingly directed the conduct constituting the crime at the victim of the crime because of the victim's race, sex, color, creed, physical or mental disability, sexual orientation, ancestry, or national origin".
Not only would this create preferential victimhood with a Byzantine system of protected classes, but Clarkson also points out that criminalizing motive is unusual, difficult to prove in court and may lead to putting defendants' comments and speech on trial. If a person who commits a crime happens to have made derogatory or “hateful” comments in the past based upon race or sexual orientation, the penalty for their crime could be enhanced based solely upon their past speech, or current thoughts or beliefs. State of mind, intent or knowledge, generally plays into determining the specific crime someone committed, but that is different than criminalizing speech, thoughts and beliefs, which we don't usually do here in the United States.
To Clarkson's analysis I would add the following: It could also lead prospective defendants who are actually guilty of a real crime to dig in their heels, refuse to accept plea deals, and make the justice system hemorrhage resources in order to prove its case. It could also increase the prospect of jury nullification; for example, in a case of murder also accompanied by a hate crime enhancer, a jury may convict of murder but refuse to convict on the hate crime enhancer. Or, in a fit of pique, a jury may simply refuse to convict altogether despite the strength of the evidence.
Hate crimes legislation also implicitly weakens protection against double jeopardy. Proponents of hate crimes theology defend their advocacy by maintaining that a crime against someone in a "protected class" is not only a crime against an individual, but also a crime against the individual's entire class. This introduces the spectre of class warfare into the criminal justice system. When Joshua Wade murdered Alaska Native Della Brown, he did NOT commit a crime against the Alaska Native community. He did NOT commit a crime against the Anchorage community. He did NOT commit a crime against the State of Alaska. He committed a crime against Della Brown, and ONLY against Della Brown. Any other interpretation muddies up the criminal justice process.
Clarkson sums up his excellent essay by saying that "the ultimate goal should be equal justice, not extra justice. Let’s not politicize criminal justice. Prosecute murder, prosecute assault, prosecute arson – but, let lady justice wear her blindfold so that she can regard all crime victims equally". I couldn't agree more.