One of the Things I Hate: Using Hate Crime Statutes to Punish Non-Hate Crimes

"During the debate on the NY Hate Crime bill, I was against the cause. It isn't that I do not think that there is something inherently wrong with a person who hurts another out of hate or prejudice, it is that : 1. I do not like to punish people for their thoughts, and 2. I know lawyers well enough to know that they cannot stand to see a statute NOT get abused.

As I predicted now comes my friend Tom Spota (DA of Suffolk County and I am not being sarcastic I've known Tom since his days as an assistant district attorney in the 70's and I really do like him even if I don't always agree with him)who seems hell bent on abusing the statute to get a greater sentence for a person who has no hate (as we define the term generally) for the person they have allegedly hurt.

Lisa Ferkovich aka the "Sweetheart Scammer" basically charms old men out of their pensions. If true, she is despicable. She evidently according to Spota picks old men b/c they are easier to scam. Hence because she targets a particular segment of society, she must be involved in hating that segment and is open to an enhanced sentence.

A close look at Article 485 of the NYS Penal Law shows that while Spota may be right about how he CAN use the law, it is far from how the law was meant to be used.  The Hate Crime Statute begins with a legislative finding (I wish more laws did this) That finding is part of the law (as opposed to just a legislative history. In part it reads:

"The legislature finds and determines as follows: criminal acts
involving violence, intimidation and destruction of property based upon
bias and prejudice have become more prevalent in New York state in
recent years. The intolerable truth is that in these crimes, commonly
and justly referred to as "hate crimes", victims are intentionally
selected, in whole or in part, because of their race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation. Hate crimes do more than threaten the safety and
welfare of all citizens. They inflict on victims incalculable physical
and emotional damage and tear at the very fabric of free society. Crimes
motivated by invidious hatred toward particular groups not only harm
individual victims but send a powerful message of intolerance and
discrimination to all members of the group to which the victim belongs."

Reading the first sentence one gets the idea that the legislature was trying to limit the use of the statute to our understanding of hate. Prejudice and Bias. So far so good. The sentence that begins "Crimes motivated by invidious hatred toward particular groups..." also fits the definition of a hate crime however in between, there is the line "... victims are intentionally selected, in whole or in part, because of their race, color, national
origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation."

That segment if read as part of the entire document seems to be consistent with the idea that one must have an invidious hatred in targeting a group however that is not how Spota wants to use the law. He wants to say that the targeting in and of itself is enough to trigger the enhancement. In other words he perverts the statute by suggesting that the targeting vitiates the need to prove "actual hate". The sad thing is that some courts (mostly in Queens County) see it the same way. I humbly think that if this is how the law is going to be used, then the whole thing needs to be thrown out.

Hate crimes are hard enough to define now. Sure there are easy ones, the KKK attacks a black man and his family for instance. Pretty easy to follow. Less so in a bar fight where someone calls some one a cracker or a "N" word in the middle of the fight. Heat of the moment or invidious hatred toward another group?

Assuming that the "reason" someone commits and act is a valid use of a sentencing enhancement, shouldn't that reason be clear? Does someone hate another group because he or she uses inappropriate epitaphs  in the heat of the moment?

In the case of Ms. Ferkovich, does she hate old people or old men just because her scam is in part to target them? I do not think so. I think she does target old men because she is not going to succeed in targeting younger men (Her picture is not flattering) and they may not find her compliments as flattering or they may see through her or who knows maybe they do not want to have her as a companion. I do not see this as a dislike of older men. I see this as part of the crime itself, but it is a targeting. How it differs from her targeting men in general is unclear.

Put a different way, does a prostitute commit a hate crime because she targets johns??

IF the article is correct and complete, there appears to be no hate. If Spota is right then there needn't be any. If the law's general use is to be based not on hate but on targeting then it is a stupid unnecessary law. Every crime has a target. If he wants tougher sentencing he ought to lobby the legislature to get it. Abusing the hate crime law is wrong. The problem is, if she is guilty it is hard to find any compassion for this woman. That doesn't mean we should pervert our laws in order to get her for more time.
Funny.., I think Spota is over 60 now...

Let me know how you feel about the Hate Crimes Statute and this use of it in the comments below.

The Firing of Juan Williams: Liberals & Neo-Cons Two Peas in a Pod. They Only Favor Free Speech of Those With Whom They Agree.

Juan Williams is a reporter and commentator for NPR (National Public Radio). He also tries to provided the "balance" on Fox News Network presenting the so called "Liberal" side of the Fox equation.

The other night, Bill O'Reilly was discussing whether or not America had a "Muslim Problem." (If we do it is in great part O'Reilly's fault. He went on "The View" last week and announced that "Muslim's killed us on 9-11." In reality it was 21 Muslim fanatics and their murderous handlers abroad) Williams was his guest. Williams said the following:

"I mean, look, Bill, I'm not a bigot," Williams continued. "You know the kind of books I've written about the civil rights movement in this country. But when I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous."

Of course all the usual suspects (NAIR, Andrew Sullivan, and NPR brass) all started hand-ringing and accusing Williams of being prejudiced. Then in the expected second act, the NPR Brass fired him. Why? Because he had the temerity to express in words that he feels fear when he is placed in a situation where people of a certain background have in the past created havoc.

Sorry guys you are wrong.

I sent the following letter to the NPR Obudsman. I reprint it in full below.

To whom this may concern:
You and your organization have seen the last dollar you ever will from me. Are you all a bunch of crazy people? I am a Criminal Defense Attorney and a Civil rights lawyer.I have news for you. I represent thugs, gangsters, and the seriously deranged individuals. I walk the streets of ghetto neighborhoods and I am often in dangerous places around people who do not look like me.

I represent Muslims and Sheiks and all types of religious, ethnic and sexual orientations. I also represent gang members from Bikers, to Russians to Spanish (el Salvadorian and Mexican) to Italian and Albanian. I do not consider myself to be prejudice.

That said, I also see people who dress in a certain way or are in certain places and I feel nervous. It isn't prejudice, ITS SMART. Being aware of your surroundings is important. Being on guard when you are the odd person out is wise. Neither Juan nor I am advocating doing something stupid like not getting on a plane or leaving a restaurant. It was a true and natural reaction to what is going on.
If I walk into a Mosque I am not afraid. I am not unwilling to speak to a Muslim or anyone else. I am aware and a bit anxious when I see people wearing gang colors. I watch what they are up to. I observe more. I see a bunch of kids in the mall and they are dressed like Gangstas I watch them more, I look for behaviors like their creating a scene while another steals something. It happens occasionally. I see a bunch of Muslims speaking in foreign tongues and I watch them. I worry that maybe this is the next shoe bomber. I don't report them to security but I watch. It is the right and smart thing to do. It doesn't uncover deep seated prejudice. This didn't happen before 9-11-01. It isn't a deep seated fear. It is not something that happens in restaurants but it happens on trains buses planes. Around synagogues too.

Firing Juan Williams was a terrible error in judgment. I agree with the commentator that describes liberals as all for freedom of speech as long as they agree with it. You are no better than tea party activists. I am a libertarian. When I have the money I have donated to Public Radio stations in NY and to Public TV. I want more than one opinion. I don't want dishonesty. Williams is NOT the only person of reasonable mind who feels this way. His expression on O'Reilly was how he felt. It gives permission to others to admit their fears and to address them.

Juan Williams is not the problem. He is a solution. Frank discussion and truth are the ways to address the issues and pretending that people who are intelligent do not harbor fear because of the situation is a good way to be sure the underlying issues are never addressed.