>>> kwalker2 at gte.net 01/10/01 03:52PM >>>
thought perhaps the more versed in this issue and in legal issues in
general might fill me in here. someone posted a comment wondering why hate
crimes were penalized differently/why there had to be this category at
all. i replied to point out that we tend to penalize the prosecuted on the
basis of the motivations/mind set for a crime. hence, first and second
degree murder, manslaughter/involuntary manslaughter, crimes of passion,
murder in cold blood, etc.
(((((((((((
CB: Seems to me you understand it in what you say here. The "mens rea" is the mental element of a crime. As you sketch above, the difference between murder and manslaughter is roughly the difference between intentional and negligent ( accidental, unintentional) killing or the mental element. Difference between first and second degree murder is sometimes described as the difference between coldblooded ( with deliberation and forethought) and hotblooded intentional killing . Conspiracy has a mental element too: an agreement to commit a crime.
"Hate" crimes originated with the Nuremburg trials of the Nazis for Crimes against peace ( war crimes) and Crimes against humanity ( genocide), the latter being "hate crimes proper". The Holocaust against the Jews was the main historical impetus, but once they opened the door U.S. Indian reservations and Jim Crow, et al. fit the definition of the UN Convention which encoded the Nuremburg principles ( though no BIA agents or Segregationists were ever prosecuted under it)
Actually, as your dialogue suggests, cases of hate murder, don't allow for much differentiation between a hate murder and other murders, since the potential punishment of any murder is usually the maximum penalty (either life or death penalty), so there isn't any room for punishing the "hate" in the mental element. The same with a hate assault less than murder.
So, the only area left to differentiate these statutes from murder, assault or other statutes is nipping the hate murders in the bud before they occur by punishing advocacy of fascistic racism , as in the historical examples of the Nazis and the KKK. See archives for several threads on outlawing the Nazis and KKK ( with me and maybe Ken Lawrence the only ones arguing on this side of it ).