“Hate” is not an element of New York’s “hate crime” law. You don’t have to hate to commit a hate crime. Instead, the law merely requires that you have “a belief or perception” regarding a person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation. (The legislature could have saved a lot of bother by simply saying “a characteristic of a person over which that person has no control.” That’s the policy they’re pursuing, even if they don’t realize it.)
There’s a list of eligible crimes at PL §485.05(3). If you commit one of those crimes, and if you either chose your victim or committed the crime because of such “a belief or perception,” then you are guilty of a hate crime in New York, and now face harsher punishment.
This is a pretty vague statute. You don’t need to have any specific belief or perception about someone, just “a” belief or perception.
The Queens DA’s office — already known more for its zeal than for its sense of justice — has now taken that vagueness to its logical extreme. They’ve taken the reductio ad absurdum and made it office policy.
The New York Times reports today that the Queens DA has been going after people who defraud old people, not because of any animus towards old people, but because of a belief about old people. Namely, that old people are easy to defraud.
Ordinarily, such frauds do not carry any mandatory jail time. But if charged as a hate crime, they carry mandatory upstate prison time. Can it be that the legislature really intended this outcome?
By the Queens DA’s logic, every scam targeted at the elderly is a hate crime, because the scam rests on a belief that old folks are easy to scam.
By this same logic, any fake charity targeting Catholics would be a hate crime, because the scam rests on a belief that Catholics would give to that particular charity.
By this same logic, every rape of a woman is a hate crime, because the rape rests on a belief that women have vaginas that can be penetrated.
By this same extreme logic, every murder of a blind person is a hate crime, because the murder rests on a belief that blind people have lives that can be taken.
Of course that’s absurd. This is all absurd. There are already laws on the books dealing with such scams and crimes. There are already penalties thought out and voted on for people who commit scams and rapes and whatever. It cannot be that the legislature intended them to face even more time than the law already gives them.
So what’s going on here?
What we have here is the legislature failing to get the concept.
The whole point of a hate crime is to impose more severe sentences based on a more severe mens rea.
If you think about it, mens rea is what determines the severity of a crime. For any given criminal act, the more culpable the mental state, the more severely it is punished. Negligence is worse than accident. Knowledge is worse than recklessness. Intent or purposefulness are worse than the rest.
Hate crimes enhance a sentence based on an extra mental state. But unlike the other mental states, the focus isn’t on what you were thinking about your own actions, but what you were thinking about the victim. (See more on all this here, here and here.)
And as pointed out above, it’s got to involve something over which the victim has no control. Nobody can help how they’re made, and it’s wrong to hurt someone because of it. That’s the policy underlying discrimination law, substantive due process, and related jurisprudence. And it’s the same policy underlying hate crime laws.
But there also has to be some animus: You’re targeting old people because you don’t like them, not because they’re more likely to fall for a con. You’re targeting gays because you think they’re bad, not because they’re more likely to have stuff worth burgling. You’re targeting black/white/purple people because you think they deserve it, not because you’ve simply selected them as more likely targets.
That is, after all, the whole point. If you’re mugging Asian people, not because of any animus towards their race, but because you think they’re more likely to carry cash worth taking, then your mens rea isn’t any worse than any other mugger. There’s nothing extra-invidious about your crimes.
This is what New York failed to grasp. The whole policy of hate crimes is to give greater punishment to invidious behavior, yet New York left the whole invidious aspect out of the law. They wrote it into their policy preamble, but left it out of the definition of the crime.
And now it’s being used as a weapon to get mandatory jail time when the legislature clearly contemplated no such thing.
ADA Kristen Kane, head of the Queens DA’s elder fraud unit, is quoted by the NYT as saying that’s a good thing. “We don’t have a whole lot of tools,” she’s quoted as saying. “We should utilize what the legislature has given us.”
Forgive us, but that’s a load of hooey.
That line “we don’t have a whole lot of tools…” You know what that means? It means she sees her job as something other than what it is. She sees her job as putting people in prison.
There aren’t a lot of tools, it is true, for getting a fraudster mandatory prison time when the amount at issue is less than a million dollars. Because the legislature has not set any mandatory prison time for such crimes.
But there are a lot of tools for doing her actual job, which is to see that the actual law is enforced, and that greater justice is done. She has all the same tools to do that job as any other New York prosecutor. And many of them seem to do their jobs quite well.
When she’s saying “we should utilize what the legislature has given us,” what she’s really saying is “we think the law should impose stiffer sentences here, and we’re willing to take improper advantage of an ambiguity in the statute in order to get stiffer sentences that the legislature never intended.”
Well, that’s not the DA’s job. The legislature may have erred in drafting the law too carelessly, but it is flatly unethical for the DA to misuse the law in this way.