Transcript of Attorney Norm Pattis' Overview of Hate Crime Prosecutions, Origins and Criminal Defense Strategy in Hate Crime Prosecutions
It might surprise you to learn that criminal defense lawyers, law professors, and judges cannot agree on just how many ways there are to break the criminal law. At the time the Republic was founded, there were just a handful of federal offenses.
Now, by contrast, there are thousands at a minimum, at least 4,000. Add to this the thousands more offenses that you can commit in the various state and territorial jurisdictions in the United States, and you quickly come to the sobering conclusion that you can break the law without even knowing it.
All lawyers can do is protect their clients from charges that ambitious prosecutors bring. Savvy lawyers spot trends in prosecution changes and legislation, changes in public attitude. Armed with this information, they can sometimes provide advice about conduct to avoid if you wanted to avoid confrontation with the state or federal governments.
A quick overview of these various factors reflect the following new wave in prosecutions on both the state and federal level. Brace yourself. You’ve not seen anything like it in recent years. I’m referring to hate crime prosecutions.
A hate crime is simply an ordinary offense accompanied by some evidence of bias.
A bias may, according to FBI statistics, be based on sexual orientation, sexual preference, religious affiliation, disability, gender, even gender identity now. The list is likely to grow in years to come as changes in public attitude reflect an increasing preoccupation with identity and with diversity in the celebration of difference for difference’s sake. The result will be an increase in prosecution for hate crimes.
Many of these prosecutions will be at the federal level. The United States is a federal system. In other words, there are two governments with criminal jurisdiction over every breath you take whenever you act within the territorial limits of the United States. States typically, and traditionally, have had the police power. They use that to protect the health, education, and welfare of citizens. Typical police power offenses and prosecutions are murder, burglary, rape, robbery, etc. These prosecutions become federalized when Congress acts to assert federal jurisdiction over them, and Congress does so by a nifty trick.
Any ordinary crime can be made a federal offense by a Congressional finding that the crime affects interstate commerce. Just what the metes and bounds of that limitation is, is a topic law students struggle over and the courts decide on a case-by-case basis. Suffice it to say, increasingly, everything is said to affect interstate commerce and, thus, any conduct in the United States arguably exposes you to both state and federal prosecution. And, don’t try to say you can’t be prosecuted twice for the same conduct based on double jeopardy. When different sovereigns prosecute the same offense, it’s not a double jeopardy violation.
In the hate crime context, an ordinary murder accompanied by bias of the sort described earlier, will transform an ordinary act of violence into a federal offense. Federal prosecutions for hate crimes are typically driven by publicity, interest group and identity politics, and the Congressional mandate that the federal authorities prosecute these sorts of offenses.
In 2015, the federal data collected by the FBI reflect the following: There are 4,216 race or ethnicity-based hate crimes reported in the United States, 1,263 sexual orientation hate crimes, 1,402 religious bias hate crimes, 2,626 crimes inspired by bias against property, and a handful of related claims. As people become more aware of the unlawfulness of bias-related crimes and more super-charged in their sensitivities about their own identities, I expect these claims to explode.
There is no federally collected data on state based bias on criminal charges, but it is often the case that once the federal government acts, the states are quick to follow. Bottom line, expect an explosion of hate crime prosecutions in the decade to come.
The significance of this is that ordinary criminal behavior will face enhanced sentencing as a result. This may not have much of an impact on crimes such as murder where our sentences are already catastrophically long, at least by contrast to our European neighbors. But, for less serious offenses, offenses such as telephone harassment, vandalism, breach of peace, and what not, crimes that were once misdemeanors and carried relatively light periods of incarceration may soon carry decades or more of time behind bars for a conviction.
The explosion in hate crime prosecutions will amplify the problem of over-criminalization and will likely lead to an increase in long prison sentences for people who’ve made simple, ordinary mistakes. I don’t doubt for a moment that people will continue to hate one another long into the future despite our pleas for universal love, peace, and harmony among all mankind. Any good criminal lawyer is intimately familiar, if not with the writings, then with the ideas of St. Augustine, “We’re all tainted by something like original sin.” Philip Roth put it best, “The human stain.”
We have a tendency, I think, to identify with and, perhaps, love those who are much like ourselves. But, those different from us can sometimes pose a threat. This is rooted in the observation of cultural anthropologists that we are really incapable of developing a robust appreciation or any sense of intimacy with more than 100 to 150 people. Biologically, we’re simply not wired to love all of mankind.
We will always rely on stereotypes and other shorthand devices as a way of classifying people. Despite the claims of the politically correct, the differences we have as human beings will never be appreciated solely for the sake of difference. There will always be suspicion and sometimes hatred of the other.
What does this have to do with criminal defense? Plenty. States of mind are almost never proven by means of direct evidence. We do not have machines that permit us to read the minds of others, at least not yet. But, stay tuned. With artificial intelligence on the horizon, who knows what brave new world awaits us?
As jurors are often told, “We know the contents of other minds by the statements people make and the behavior they engage in.” In other words, we draw inferences based on our direct observations. Evidence regarding a state of mind is, therefore, by definition, almost always circumstantial in character. Despite what television tells you, direct evidence and circumstantial evidence have equal probative value.
Jurors in many jurisdictions are taught that circumstantial evidence can even have more probative, or proof, for the evidentiary value, than direct evidence. What you say, in other words, can shed light on what a jury will conclude is in your mind. And, what you say in an unguarded moment may support a prosecution for a hate crime.
In ways unforeseen by the Founders of this Republic, this intersection between the First Amendment right to freedom of speech and freedom of expressive speech, in particular, will intersect in catastrophic ways with the criminal law. Suppose, for example, you spit on a sidewalk. You spit in the direction of a person different than yourself. On a prior occasion, you’ve uttered, perhaps, on social media, something about that class of persons, whether they’re gay, black, a white male, endowed with white male privilege, or Hispanic. Does this circumstantial evidence of some attitude toward the other who is different from you suddenly transform the act of spitting into a hate crime and, perhaps, a felony?
Expect ambitious prosecutors to troll social media accounts routinely of those charged with crimes, looking for stray tidbits that they can throw against the evidentiary wall in an effort to demonize or criminalize the ordinary.
Almost all crimes in the United States have, at a minimum, two things in common.
First, a prohibited act, thus, for crimes involving the taking of life, in other words, homicide. There’s murder, manslaughter, and various degrees of criminally negligent homicide. What distinguishes these prohibited acts from one another, or these crimes, is the state of mind of the persons who committed them. Murder, in some jurisdictions, is the taking of human life with specific intent. In other words, the conscious objective to take that life. Criminally negligent homicide, by contrast, is taking of a human life while failing to perceive a risk of harm that an ordinary person would be expected to see.
Add this new element to the bad attitude toward the different, different to an ordinary criminal offense, and you see that the possibilities are, if not endless, at least approaching so.
I’m not suggesting for a moment that intolerance is good, that diversity is bad, and that people ought to be free to harm or hurt one another, or the property of others as a result of their hatred of them.
But, I’m a criminal defense lawyer, and my job is to protect people accused by the government of engaging in wrongful conduct. In the years and decades to come, I expect an explosion in hate crime prosecutions as our Republic seems to fray around the edges and we lose our common sense of character and values and retreat into identity groups. Expect the criminal code to evolve in a way that criminalizes things far more seriously than they have been in the past. This is nowhere more obvious than in the area of the speech that we utter about one another and, sometimes, at one another.
When choosing a lawyer to defend your potential hate crime, be sure the lawyer is familiar, not simply with the criminal law, as complicated as that is, but with emerging trends and First Amendment law.
We may have the freedom to speak in this country, and that will likely remain robust in the years to come, but at the very edges of this freedom, the government will chip away at expressive speech. It will do so by criminalizing conduct more seriously, based merely on the words you say.
If you have been charged with a hate crime or believe you might become the target of a hate crime prosecution in Connecticut, New York, Massachusetts or elsewhere,Call Us 203.393.3017 or Connect Online