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Monday, December 30, 2019

Hate crimes charges in synagogue stabbing (Updated)

The United States has filed federal hate-crimes charges against Grafton Thomas, accused of stabbing five people at a shul during a Chanukah celebration. The charges were brought under § 247, which prohibits obstruction of a person's free exercise of religion through the use of force. According to the complaint allegations by FBI Special Agent Julie Brown, Thomas' handwritten journals and internet searches focused on some anti-Semitic content.

I have never been a fan of hate-crimes laws. I believe SCOTUS gave too-short shrift to the First Amendment concerns in upholding the concept in Wisconsin v. Mitchell. I am not convinced that Thomas' actions are "worse" because he targeted Jews as to require different crimes or punishments. Nor do I (as sort-of part of the "attacked" group*) feel safer or more protected that Thomas will be prosecuted for the specific crime of targeting Jews as opposed to the more general crime of attempted murder or assault-with-a-deadly-weapon or something like that.

[*] To be clear, in response to a reader email, I am not trying to separate myself from the victims of these attacks as "different" types of Jews. By sort-of, I was making the point that the attacks have been localized in insular Jewish communities in New York. So I am part of the group as a Jewish person; I am not part of that insular and localized group. For purposes of this post: If the attacks were taking place against Jews in Coral Gables, Florida (where my temple is located), I would not be in any greater favor of hate-crimes laws as the solution.

I did not know about § 247, distinct from § 249(a), which makes it a crime to willfully cause or attempt to cause bodily injury to a person because of, among other things, the victim's actual or perceived religion, race, or national origin. I am curious why the U.S. Attorney charged under § 247 rather than § 249. Is the difference that this attack occurred during religious exercise--a Chanukah celebration at a place of worship--rather than from encountering a Jewish person on the street? And if the US Attorney pursues others of the dozen-or-so attacks on Jews of the past eight days, which occurred on the street, would it use § 249 instead?

Update: Marty Lederman also wonders why the government used § 247 rather than § 249, because it would be easier to prove both the motive element and the jurisdictional elements under § 249 than § 247 (although Marty believes the government can prove both as to § 247).

Posted by Howard Wasserman on December 30, 2019 at 05:10 PM in Constitutional thoughts, Howard Wasserman | Permalink

Comments

The use of 247 seems particularly scary given the current federal government. I imagine the Christian Right is behind the use of the clause, as they no doubt have a very broad interpretation of it. This reeks of a 1st Amendment danger, as it could be used to suppress counterspeech to the Christian Right.

Posted by: Jennifer Sanders | Jan 2, 2020 8:48:09 PM

I think that there is something "worse" about targeting someone due to animosity toward that person's race, religion, etc. It seems to me that most people, in their heart of hearts, could envision some circumstance in which he or she might commit a serious crime: jealousy, desperation for money, etc. But how many people can envision themselves committing a crime out of racial, etc, animosity? That really does seem to be beyond the pale, and hence more morally reprehensible.

That being said, the way most hate crime statutes are written, animosity is not needed. Rather, victims must be chosen in part "because of" their membership in a particular group. As I understand it, that has led to successful hate crime prosecutions in which, for example, a mugger targets a gay man not because of anti-gay animus, but rather because the mugger thinks a gay man is less likely to resist. That is problematic, because the mugger in that case does not seem to me to be more morally culpable than any other mugger, and so does not merit greater punishment.

Posted by: gdanning | Dec 31, 2019 11:18:50 AM

Steve,
You're not missing anything. Your comment is on point. It's a good thing that society doesn't agree with Howard's view: "I am not convinced that Thomas' actions are 'worse' because he targeted Jews as to require different crimes or punishments." In addition to federal law, all 50 states and the District of Columbia now have hate crimes laws. And there are many, many more such local laws.

The latest FBI statistics, as has been the tragic norm for years, place Jews second on the list of hate crimes victims. Since the FBI report first appeared, they have been by far the most attacked religious group. The numbers are even more shocking given that Jews make up less than 2% of the total U.S. population. And the horrible news is that antisemitic crimes are on a sharp increase in the U.S., Europe, and the Arab world.

Contrary to Howard's attempt to write out motive from discrimination laws, the Court in Wisconin v. Mitchell held that motive under the Wisconsin statute “plays the same role . . . as it does under federal and state antidiscrimination laws” (508 U.S. 476, 487). One of the proudest events of my life was being sworn into the Wisconsin bar at a private ceremony with Justice Shirley Abrahamson, who wrote the lone dissent to State v. Mitchell. She rightly observed the "treasured" role of free speech "in a free, democratic society," but went on to say, "We acknowledge that when individuals are victimized because of their status, such as race or religion, the resulting harm is greater than the harm that would have been caused by the injurious conduct alone." State v. Mitchell, 169 Wis. 2d 153, 179 (1992) (Abrahamson, J., dissenting), rev'd, 508 U.S. 476(1993). The Holocaust and innumerable number of pogroms against the Jews bear her statement out.

While motive is unusual in criminal law, it is no novelty. The aggravating factor at capital murder for pecuniary gain trial is an example. So, too, kidnaping to commit sexual battery can carry harsher penalty than other forms of kidnaping.

Deeply rooted and established "super-statutes," exist in a variety of civil rights settings that prohibit racist, bigoted, and xenophobic motives from interfering, injuring, and intimidating victims from engaging in fair housing practices and from interfering with victims privileges and immunities under color of law. 18 U.S.C. § 245(b)(2) (enumerating acts); 18 U.S.C. § 242 (under color of law); 42 U.S.C. § 3631 (fair housing)).

So, the a 18 U.S.C.A. § 247 charge seems right in the Grafton Thomas case for the attack with an eighteen inch machete of Jews celebrating Chanukah. Probable cause exists that this is a hate crime given his internet searches and his comments in his hand written journal.

Posted by: Alexander Tsesis | Dec 31, 2019 9:20:27 AM

Steve,
You're not missing anything. You're comment is on point. It's a good thing that society doesn't agree with Howard's view: "I am not convinced that Thomas' actions are 'worse' because he targeted Jews as to require different crimes or punishments." In addition to federal law, all 50 states and the District of Columbia now have hate crimes laws. And there are many, many more such local laws.

The latest FBI statistics, as has been the tragic norm for years, place Jews second on the list of hate crimes victims. Since the FBI report first appeared, they have been by far the most attacked religious group. The numbers are even more shocking given that Jews make up less than 2% of the total U.S. population. And the horrible news is that antisemitic crimes are on a sharp increase in the U.S., Europe, and the Arab world.

Contrary to Howard's attempt to write out motive from discrimination laws, the Court in Wisconin v. Mitchell held that motive under the Wisconsin statute “plays the same role . . . as it does under federal and state antidiscrimination laws” (508 U.S. 476, 487). One of the proudest events of my life was being sworn into the Wisconsin bar at a private ceremony with Justice Shirley Abrahamson, who wrote the lone dissent to State v. Mitchell. She rightly observed the "treasured" role of free speech "in a free, democratic society," but went on to say, "We acknowledge that when individuals are victimized because of their status, such as race or religion, the resulting harm is greater than the harm that would have been caused by the injurious conduct alone." State v. Mitchell, 169 Wis. 2d 153, 179 (1992) (Abrahamson, J., dissenting), rev'd, 508 U.S. 476(1993). The Holocaust and innumerable number of pogroms against the Jews bear her statement out.

While motive is unusual in criminal law, it is no novelty. The aggravating factor at capital murder for pecuniary gain trial is an example. So, too, kidnaping to commit sexual battery can carry harsher penalty than other forms of kidnaping.

Deeply rooted and established "super-statutes," exist in a variety of civil rights settings that prohibit racist, bigoted, and xenophobic motives from interfering, injuring, and intimidating victims from engaging in fair housing practices and from interfering with victims privileges and immunities under color of law. 18 U.S.C. § 245(b)(2) (enumerating acts); 18 U.S.C. § 242 (under color of law); 42 U.S.C. § 3631 (fair housing)).

So, the a 18 U.S.C.A. § 247 charge seems right in the Grafton Thomas case for the attack with an eighteen inch machete of Jews celebrating Chanukah. Probable cause exists that this is a hate crime given his internet searches and his comments in his hand written journal.

Alex

Posted by: Alexander Tsesis | Dec 31, 2019 9:17:48 AM

Sorry. I thought you were talking about the first clause, on depriving. Anyway, same answer: Public officials don't have a First Amendment right to discriminate in carrying out their public duties, whereas a private individual does, but for a hate-crimes statute.

And w/r/t to § 242, this becomes clearer in that: 1) the statute was reenacted in 1870 under § 5 of the 14th Amendment, making it enforcement of the Equal Protection Clause and 2) the target of the law was, in part, the "Black Codes," the formal state laws that prescribed different punishments on account of race--and there certainly is no First Amendment right of state officials to instantiate formal discrimination in state law.

Posted by: Howard Wasserman | Dec 31, 2019 8:43:31 AM

You are wrong about that, Howard. § 242 definitely turns on the official's motives, as it applies when they subject any person to "different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens." Or am I missing something?

Posted by: Steve L. | Dec 30, 2019 9:00:41 PM

As for § 242, that does not turn on the official's motives (except to the extent motive is an element of the constitutional violation itself). And a government official should not have First Amendment rights viz a member of the public when performing his official functions. As an individual, I have a First Amendment right to discriminate; as a government employee performing my government job, I don't.

As for anti-discrimination laws, I admit that is tricky. The best answer, I think, is that anti-discrimination laws are the least restrictive means to serve the government interest in ensuring access to jobs, public accommodations, etc. A content-neutral law against attempted murder can serve the purpose of protecting these victims, without needing a special law turning on the perpetrator's motive.

Posted by: Howard Wasserman | Dec 30, 2019 8:24:14 PM

I agree with you, Howard, about the problematic nature of hate crime enhancements, but I wonder about your comment that "I am not convinced that Thomas' actions are 'worse' because he targeted Jews as to require different crimes or punishments."

I assume you are okay with anti-discrimination laws that impose penalties for targeting minorities, as well as federal criminal civil rights prosecutions under § 242. Why are hate crime enhancements different? Both situations turn on the motive of the perpetrator.

Posted by: Steven Lubet | Dec 30, 2019 8:00:12 PM

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