The legal paradox of prejudice-driven offenses: Motive as crime element versus sentencing factor

“ By comparison, a larger sample of data from 52 major cities compiled by the center showed hate crimes in the United States surged by nearly 30 percent in 2021, according to the report.
A hate crime is defined by the FBI as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity. ”

“ Relying on our decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986) , the appeals court found that the state legislature decided to make the hate crime enhancement a “sentencing factor,” rather than an element of an underlying offense–and that decision was within the State’s established power to define the elements of its crimes. The hate crime statute did not create a presumption of guilt, the court determined, and did not appear “tailored to permit the ... finding to be a tail which wags the dog of the substantive offense.” ”

“ Thus, if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact—of whatever sort, including the fact of a prior conviction—the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime. ”

“ Definition.— In this section, “hate crime” means a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person. ”

“ In the last year alone, we've seen the shootings of African Americans, Asian Americans, and Jewish children simply because of who they were. This is not the American way. We must draw the line. Without delay, we must pass the Hate Crimes Prevention Act and the Employment Non-Discrimination Act. And we should reauthorize the Violence Against Women Act.
No American should be subjected to discrimination in finding a home, getting a job, going to school, or securing a loan. Tonight, I propose the largest ever investment to enforce America's civil rights laws. ”

“ As the dissenting judge on the state appeals court pointed out, according to the New Jersey Criminal Code, “ [a] person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result.” N. J. Stat. Ann. §2C:2—2 (b) (1) (West 1999) . The hate crime statute’s application to those who act “with a purpose to intimidate because of” certain status-based characteristics places it squarely within the inquiry whether it was a defendant’s “conscious object” to intimidate for that reason. ”

“ Such an offense is punishable by imprisonment for “between five years and 10 years.” §2C:43—6 (a) (2) . A separate statute, described by that State’s Supreme Court as a “hate crime” law, provides for an “extended term” of imprisonment if the trial judge finds, by a preponderance of the evidence, that “ [t] he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” ”

“ A second mens rea requirement hardly defeats the reality that the enhancement statute imposes of its own force an intent requirement necessary for the imposition of sentence. On the contrary, the fact that the language and structure of the “purpose to use” criminal offense is identical in relevant respects to the language and structure of the “purpose to intimidate” provision demonstrates to us that it is precisely a particular criminal mens rea that the hate crime enhancement statute seeks to target. ”

“ Words joined to an action assume the nature of this action. Thus a man who goes into a public market place to incite the subjects to revolt, incurs the guilt of high treason, because the words are joined to the action, and partake of its nature. It is not the words that are punished, but an action in which words are employed. They do not become criminal, but when they prepare for, accompany, or follow a criminal action: every thing is confounded, if words are construed as a capital crime instead of considering them only as a mark of a capital crime. ”

“ The constant and universal object of hatred or anger is a person or creature endow'd with thought and consciousness; and when any criminal or injurious actions excite that passion, 'tis only by their relation to the person or connexion with him. But according to the doctrine of liberty or chance, this connexion is reduc'd to nothing, nor are men more accountable for those actions, which are design'd and premeditated, than for such as are the most casual and accidental. Actions are by their very nature temporary and perishing ”

“ Malice, the term by which English Lawyers seem in some instances to have had in view the expressing consciousness of blame, presents a wrong idea, since in common language it implies hatred, an affection which in many instances of conscious guilt, may be altogether wanting:—instance offences of mere rapacity, such as theft, robbery, and homicide for lucre. ”

“ As applied to things, hatred is intense aversion, with desire to destroy or remove; hatred of evil is a righteous passion, akin to abhorrence, but more vehement. Malice involves the active intent to injure; in the legal sense, malice is the intent to injure, even tho with no personal ill will; as, a highwayman would be said to entertain malice toward the unknown traveler whom he attacks. Malice is direct, pressing toward a result; malignity is deep, lingering, and venomous, tho often impotent to act ”

“ It is the anger without cause or beyond cause, and which degenerates into a bitter feeling of revenge, that is here condemned. Wrath is the fierce ebullition of anger, expressed with ungovernable passion; and is at all times unseemly and unlawful. Malice is anger long cherished, until it becomes a settled habit of mind. It involves hatred, secret envy, desire of revenge and retaliation, and universal ill-will towards others. It is altogether a diabolical passion. If anger exceeds its bounds, it becomes wrath; if wrath lies brooding in the bosom, it degenerates into malice. ”

“ Malice is badness of disposition, the aptness to envy and hatred, which apart from any special occasion is always ready to break out in bitterness and wrath. Bitterness is malice sharpened to a point and directed against the exasperating object. Wrath and anger are synonymous, the former being the passionate outburst of resentment in rage, the latter the settled indignation of the aggrieved soul. ”

“ Wherever crime shows itself it follows certain well-defined lines and has its genesis in three dominant mental processes, the result of marked propensities. These are malice, acquisitiveness and lust. Malicious crimes may be amplified into offences against the person originating in hatred, resentment, violent temper, and rising from mere assaults into manslaughter and murder. Crimes of greed and acquisitiveness cover the whole range of thefts, frauds and misappropriation ”

“ Hatred is one of the passions that can master a life, and there is a type of temperament very prone to it, ready to see life in terms of vindictive melodrama, ready to find stimulus and satisfaction in frightful demonstrations of “justice” and revenge. ”

“ We are not, however, to imagine, that all the angry passions are vicious, tho' they are disagreeable. There is a certain indulgence due to human nature in this respect. Anger and hatred are passions inherent in our very frame and constitution. ”

“ When a powerful passion seeks gratification, it is no extenuation that the act is illogical, for when passion is once allowed to operate reason loosens its restraints.'
Reference was also made to a portion of a charge delivered by a judge in New York upon the subject of motive for the commission of crime, in which it was said that a small sum of money, a word spoken in anger, an insult, wrongs real or imaginary, revenge, jealousy, hatred, envy, and malice often lead to the commission of the crime of murder. ”

“ Besides we may consider, that when we receive harm from any person, we are apt to imagine him criminal, and 'tis with extreme difficulty we allow of his justice and innocence. This is a clear proof that, independent of the opinion of iniquity, any harm or uneasiness has a natural tendency to excite our hatred, and that afterwards we seek for reasons upon which we may justify and establish the passion. ”

“ By maliciously is not meant malice against any particular individual, but a mischievous intent. This is the criterion, and it is a fair criterion, if it can be collected from the offensive levity in which the subject is treated, if the matter placed in the indictment contains any such tendency.' If the words had appeared in the course of a written paper you would have entertained no doubt that the person who had uttered these words had uttered them with levity. ”

“ Malice, then, is an element in the offense, and discriminates it from the other crime of felonious homicide which I have mentioned, to wit, manslaughter; that is, malice, express or implied, discriminates murder from the offense of manslaughter.' 'Express malice exists when one, by deliberate premeditation and design, formed in advance, to kill or to do bodily harm, the premeditation and design being implied from external circumstances capable of proof, such as lying in wait, antecedent threats, and concerted schemes against a victim. ”

“ An indictment which clearly and distinctly alleges facts showing a murder by the unlawful killing of a human being with malice aforethought is good as an indictment for murder under the Utah statutes, although it may not indicate, upon its face, in terms, the degree of that crime, and thereby the nature of the punishment that may be inflicted. Of course, if an indictment is so framed as to clearly show that the crime charged is not of the class designated as murder in the first degree, the jury could not find a verdict of guilty of murder in that degree. ”

“ That court is required by statute to review each sentence of death and determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury's finding of a statutory aggravating circumstance, and whether the sentence is disproportionate compared to those sentences imposed in similar cases. §27-2537 (c) (Supp. 1975) .
In short, Georgia's new sentencing procedures require as a prerequisite to the imposition of the death penalty, specific jury findings as to the circumstances of the crime or the character of the defendant. ”

“ A party is not to be condemned by the multitude or opprobriousness of the adjectives applied to his conduct or motives, unsupported by the facts, or, as said by Lord Chief Justice Holt, 'a fact that appears to be innocent cannot be made a crime by adverbs of aggravation.' Fraud is a conclusion of law from facts respecting the transaction designated, and if they do not necessarily tend to such conclusion the allegation falls to the ground, however often repeated, or with whatever amount of earnost asseveration. ”

“ On the other hand, the practice of dwelling only on the aggravating circumstances of a case, will magnify into crime a trifling and otherwise easily forgotten error. This is a fact in the mind's history of which few people seem to be aware, and only few may be capable of understanding. Its truth, however, may be easily proved by watching the effect of words in irritating one person against another, and increasing, by repeated insinuations, the apparent malignity of some really trifling action. ”

“ Wherefore a sin is aggravated by the very fact that it is committed through certain malice, and so much the more, as the malice is greater; whereas it is diminished by being committed through passion, and so much the more, as the passion is stronger. Secondly, because the passion which incites the will to sin, soon passes away, so that man repents of his sin, and soon returns to his good intentions; whereas the habit, through which a man sins, is a permanent quality, so that he who sins through malice, abides longer in his sin. ”

“ What is true of criminal society as a whole, is equally true of the individual as such. In each infraction of the law, besides the accidental factor, i.e. age, character, temperament, in a word, the personal disposition, there is the collective or social factor, i.e. the environment, the permanent conditions, the general laws. With the occasional delinquent the individual factor predominates, it is especially the man that appears. With the habitual delinquent, it is the social factor, the collectivity that comes upon the scene. ”

“ We have now demonstrated that crime has its natural source in the combined interaction of three classes of causes, the anthropological (organic and psychological) factor, the telluric factor, and the social factor. And by this last factor we must not only mean want, but any other condition of administrative instability in political, moral, and intellectual life. Every social condition which makes the life of man in society insincere and imperfect is a social factor contributing towards criminality. ”

“ A veritable individual factor is to be found only in some special cases, where crime is the result of a predisposition, resulting from a morbid mental condition, combined with unfavorable circumstances. At times, then, crime is the resultant of an individual factor with a social factor ”

“ If you have a case of simple theft, you may have a far greater influence of the social factor than of the anthropological factor. On the other hand, if you have a case of murder, the anthropological element will have a far greater influence than the social. And so on in every case of crime, and every individual that you will have to judge on the bench of the criminal. ”

“ Anger then is an effort of nature in the act of self-defense; it is a fever, and as such it is a fatal and culpable passion, but it is not a vice.
Anger becomes hatred when, thinking of the harm we have done or could do to our enemy, we rejoice over the thought of this harm; it is called resentment or rancor when it is the spiteful recollection of an injury received; finally, it becomes the passion of vengeance (the most criminal of all) when it is the desire and hope to return evil for evil. ”

“ Thus the indignity of injury would almost infinitely lessen, and perhaps at last come out to be nothing at all. Self-love is a medium of a peculiar kind: in these cases it magnifies everything which is amiss in others, at the same time that it lessens everything amiss in ourselves. Anger also, or hatred, may be considered as another false medium of viewing things, which always represents characters and actions much worse than they really are. ”

“ He that shall consider his malice and power, must unavoidably conclude him to be cruel. Malice is always so where it hath the advantage of a proportionable strength and opportunity for the effecting of its hateful contrivances. It banisheth all pity and commiseration,36 and follows only the dictate of its own rage, with such fierceness, that it is only limited by wanting power to execute. We may then say of Satan, that according to his malice and power such is his cruelty. ”

“ In fact, if crime were the exclusive product of the social environment, how could one explain the familiar fact that in the same social environment, and in identical circumstances of poverty, abandonment, lack of education, sixty per cent. do not commit crimes, and, of the other forty, five prefer suicide, five go mad, five simply become beggars or tramps not dangerous to society, whilst the remaining twenty-five actually commit crimes? ”

“ And can there be any doubt that disregard of law is the most dangerous psychological factor in our present-day American civilization? It is not lynch law which is the worst; the crimes against life are twenty times more frequent than in Europe, and as for the evils of commercial life which have raised the wrath of the whole well-meaning nation in late years, has not disregard of law been their real source? ”

“ Where a person is convicted on indictment of an offence for which he is liable to be sentenced to penal servitude or imprisonment, and it appears to the court—
(a) that the person is not less than sixteen nor more than twenty-one years of age; and
(b) that, by reason of his criminal habits or tendencies, or association with persons of bad character, it is expedient that he should be subject to detention for such term and under such instruction and discipline as appears most conducive to his reformation and the repression of crime ”

“ In preparation for the conference, Attorney General Reno has begun a thorough review of the laws concerning hate crimes and the ways in which the Federal Government can make a difference to help us to build a more vigorous plan of action. But of course, the fight against hatred and intolerance must be waged not just through our laws but in our hearts as well.
A newborn child today does not know how to hate or stereotype another human being ”

“ I answer that, The species and nature of a passion are taken from its object. Now the object of anger is the same in substance as the object of hatred; since, just as the hater wishes evil to him whom he hates, so does the angry man wish evil to him with whom he is angry. But there is a difference of aspect: for the hater wishes evil to his enemy, as evil, whereas the angry man wishes evil to him with whom he is angry, not as evil but in so far as it has an aspect of good, that is, in so far as he reckons it as just, since it is a means of vengeance. ”