EPISODE. 54: DO YOU HAVE A RIGHT TO HATE: HOW AMERICA TREATS BIAS-MOTIVATED CRIME

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What's going on. This is Collin McCallin with is this legal podcast and of course directly across from me is my partner in crime Russell Hebets. Hello? Hello.

Hello, everybody out there in podcast Ville.

That's a that's Russ talking and you know, do you like Taylor Swift?

You know, I've, she's grown on me since I've had a daughter who's getting older and my wife has become a fan.

I think she's awesome. Her recent albums this year were really good but she famously said haters gonna hate, hate, hate, hate, hate. In fact, I think she says it like six times in one of her songs. And we're going to talk about hate today. That's going to be the topic we're talking about hate crimes in America. There's a few things going on in the country that triggered this as a topic for our podcast. One thing that's generally going on in the country right now you know, we're recording this the April, 2021 and a report recently came out that indicates that the center for the study of hate and extremism at California state university has indicated that hate crimes against Asian Americans spiked 150% between 2019 and 2002.

And I've seen a bunch of different stats on that and they range anywhere. I saw that one, there was a private group that said hate crimes or hate, I guess not crimes hate incidents against Asian Americans has increased 4000%. I know in New York it's up like 38%.

We think this might largely be triggered by the coronavirus and the origins you know, basically being reported from coming from, from China, but there's, there was another incident that took place on March 16th. Relatively recently it was a mass shooting in Atlanta. A man walked into an Asian massage parlor and he shot and killed eight people. Six of whom happened to be Asian women who were working at the massage parlor. Now, at this point, we don't know Russ for sure whether or not that was a hate motivated crime or whether it was a, it was just a killing not motivated by hate, but obviously we decided that maybe this is something we should look at. And so today's podcast is going to get into hate crimes, what they are, what constitutes a hate crime. We're going to talk a little bit about the legislative history in America, which I think you'll find is relatively recent with regard to this stuff. We'll look at some cases and have a discussion.

So let's dive into that history that you just talked about because prior to 1968 in America, there was virtually no hate crimes on the book. Right? Okay. So it wasn't, there was plenty of hate. There was plenty of hate crimes and, you know, then that hate really it even predates America, probably I'd say, you know, the English hated the French at one point. I mean, I think we could go all the way back to, like, there was probably some Cro-Magnon those who are just hating on their Neanderthal neighbors. Absolutely. So this is not new, it's not new at all for primates even primates. It goes back further guys. All right. So, so let's talk about when it first hit the law books in America, and that really started in 1968 with the civil rights act. And what that piece of legislation did is it said that based on three categories, race, religion, and national origin, you essentially could not treat someone differently based on their race, their religion, or their national origin.

That's exactly right. You can't injure intimidate or interfere the three I's right. With, with any person based on those protected factors and the Russ, there were, there were some, I guess there were still restrictions on this law, right? I mean, was this, was this universally applied?

No. Yeah. This is this as applied and for a number of years, until really recently, this only applied to incidents when the victim of the crime was trying to exercise a federal. Right. Okay. So you're talking about things like someone's trying to go to vote and they get assaulted or harassed because they are, while they're trying to vote because of their race or their religion or their national origin. You're talking about things like if a child is going to school and they're interfered with, because you have a federal protected right. To education to vote, things like that. So it's a very narrowly defined law at this point for when you can charge someone with a hate crime under the 1968 civil rights act. Now a couple more acts over the years have, have come out. There was one in I think in 1990 that actually required the federal government to record statistics on hate crime.

Yeah. That was the hate crime statistics act of 1990. The attorney general is required to collect data on crimes every year. So that's been happening for the last 31 years.

So that's something that informs the discussion, but that didn't change penalties that didn't change, that didn't create new crimes. Now, 1994 was the violent crimes control and enforcement act. And what that did is that acted as an enhancer. Okay. So let's take a step back and define, you know, what these, what these legislations did cause the civil rights act that was a stand alone law. You could be charged with a violation of the 1968 civil rights act. You didn't need another separate criminal act in order to charge someone this 1994 law was an enhancer. So what that did is that increased penalties. So instead of getting, you know, a slap on the wrist for some offense where you would get under the normal sentencing statute, you could maybe go to jail for more years based on that

Following you. If let's just hypothetically, if a white man assaulted a black man, because the black man was black, right. We're talking about the underlying crime of assault, right? We all know that that's just universally against,

You could be charged with a site even before 1968.

What you're saying is what, what would happen is the person would be charged with assault, but his range of penalties would significantly increase. If it was deemed to be a hate crime, if it could be proven that the person assaulted the black man, because he was

That's exactly right. And now, now remember, we're talking about 1994 when this enhancement came into effect. So in your hypothetical, if someone just goes out on the street and assaults a black guy, because he's black, that's not covered because that is for them.

It didn't happen under federal th they exercise of a federal.

Exactly. He wasn't going to vote, right. He wasn't going to, is that right? Correct me if I'm wrong. Cause you looked at this more. Did the, did the violation, did the violent crimes control and enforcement act, did that allow that enhancer on the regular assault or only on that? Okay.

Only on those federally protected classes. So you were still limited. So everything changed and got a lot more broad in 2009 with the passage of the Matthew Shepard and James Byrd Jr. Hate crimes prevention act again, that was signed into bill in 2009. Let's talk about Matthew Shepard for just a second. I am guessing for some of our listeners, that name is familiar. It might ring a bell. Matthew Shepherd was a 21 year old student at the university of Wyoming. He was openly gay and he was murdered by two men named Erin McKinney and Russell Henderson. And there was a substantial amount of information that came out to suggest that these two men killed Matthew Shepard because he was gay because he was making a sexual advance toward one of these men.

There was, there was direct evidence of that. There was like one of their girlfriends said specifically that that's why they killed him. There

Clear evidence that this was a hate crime, right? These, that these men killed this man because he was gay. Both men were convicted of first degree murder and pardon me actually felony murder in Wyoming, both are serving life sentences. They were looking at the death penalty and Matthew Shepard's mother actually wanted them to not have the death penalty 11 years after his murder. I mean there was this, his legacy was w was, was very well known, a lot of States. And there were pushes at the federal level to, to make hate crime legislation in the wake of his death. That finally happened at the federal level with the passage of this act that Barack Obama signed into law. And here's what that law did. It gave it really significantly broadened. The protections that the 1968 civil rights act first created, first of all, the new law expanded hate crimes to include crimes motivated by gender identity, sexual and sexual orientation and disabilities. Those were previously not protected classes under this hate crime. Okay.

It was previously, it was just race, religion or national origin. So, you know, you attack someone because they're black, you attack someone because they're a Methodist or you attack someone because they're Irish. Right.

So this expanded to those other protected classes. The other thing that it significantly did is it dropped that prerequisite that we were talking about earlier that the victim is engaged in some sort of federal, right, right. That's what gives the feds jurisdiction in order to prosecute. But, but this law said, no, you, you do not. Basically if, if, if, if there's a hate crime against anybody and you fall into this protected class you know, this act is going to protect you.

And, and, you know, it's interesting like how, how that protection is written into that statute, because it's not just, it's not written as blanket. The feds always have jurisdiction, but it's written in such a way as a practical matter, the feds always have jurisdiction. They wrote, you know, specifically they own jurisdiction only attaches when either a, the state does not have jurisdiction. State's almost always going to have jurisdiction. If a crime is committed in the state B the state has requested the federal government assumed jurisdiction. Maybe sometimes that happens, but probably not the majority see the verdict or sentence abstained in the state, demonstratively and vindicated the federal interest in eradicating bias, motivated violence. So in this case, you know, this is one where the state can go ahead and prosecute, get a conviction, and the feds can come in and say, you know what? We still feel like it wasn't enough based on bias, motivation of the crime. We're going to go ahead and go ahead and prosecute for the exact same conduct, or this is my favorite. The last one or prosecution in the United States is a public interest and necessary to secure justice. So, I mean, if the feds just say, we feel like it'd be just to prosecute this person, they can do it under this statute. Got it.

Now real quick, let's talk about like hate crimes and the protected classes that we're talking about. I mean, really, you know there's, as Russ just alluded to, we have federal hate crime laws. We also have state hate crime laws, those vary district to district. But you do have to be in one of those protected classes as a victim for this to be a hate crime. I mean, you know, to, to illustrate an example, let's say you got a Bronco fan who, you know, assaults a Raiders fan outside of the Raider stadium. That's not going to be a hate crime because being a Raiders fan is not a protected class. And of course we all know that that beating would be justified anyway. Right,

Right. I mean, our Denver friends would agree.

Exactly. You can study. Most people would agree with me, but that's all right. You know, it's not your fault. You're a Raiders fan, I suppose. But but, but the point is, you can't say, look, he hates me. He at Bronco fan hates me. This should be a hate crime. He, he targeted me because of who I am is a Raiders fan, right. That doesn't fly. Doesn't have to be in one of those protected classes.

But now going back to what you talked about with, which is that steep rise in Asian American violence, you know, those are cases where that's going to be the critical factor to prove like for the spa shooting that happened in Atlanta. You know, he said the, the defendant, the suspect said, I shot these people. Not because they were Asian, but because I was a sex addict, you know? So he, so, but you know, the fact that that effect

The story, right? I mean, it sounds like we can close the book on the hate crime. And that's what he says,

Turns out what the defendant says about the motivation is not binding on anything in anyone. Right. So they're going to do an independent investigation. So evidence, you know, you can look at evidence, both spas. He went to were both Asian massage parlors, right. They both were, he didn't go to like a chain massage envy or something like that. He went to two Asian ones. So that's, that's what the prosecution is going to be looking at. But on the flip side, two of the people he killed were not Asian. So even though 75% of them were six of them were two weren't. So that lends some credibility to his assertion that, Hey, I was just there and I was going to shoot anyone in that spa. I wasn't targeting Asians. Right. So that's going to be something that's going to have to be figured out now for him, it's, it's kind of a moot,

Right? And he's gonna, you're being you, you're going to get convicted of first-degree murder. One of those convictions, irrespective of a hate crime designation is going to put him behind bars for the rest of his life, if not execute him. Right.

So that's, so that's one where it doesn't matter, but there's some where it does matter, like there, right. And in this, well, this can be an issue.

You too. I mean, if, if we've talked about this before when we discussed intent and proving intent as an element of the crime, that's exactly exactly what we're talking about here. And again, people don't always come out and say, I'm going to assault this Asian person because he is Asian. Right. And then they assault the person.

So some, sometimes they do, sometimes

They do, but it's very rare that they do. Most of the time, we have to infer a person's actions based in further intent, based on their actions. And, and that can be very difficult in a hate crime case. So that's one of the hurdles that a prosecutor kind of has to overcome in being able to establish.

So one, one case we have to just mention here, because I just love this story. And this woman, this is the 70 year old woman in San Francisco who was Asian woman. Who's hanging out on a on a street, just leaning against a lamppost. When a young, white male comes up and just cracks her in the head, just punches her. Right. And she either has, I don't know where she got it, but she had a piece of wood, almost like a board. And she proceeds to kick the crap out of him with this board. And I mean, there's a video. If you guys just, just Google it and find this video, it doesn't catch the actual assault, but it shows this agent woman. And she is just going after this guy, her the right side of her face is red and swollen. And she still has the board.

And this guy is on a gurney, strapped down bleeding from his mouth. And I mean, so, so a case like that, they're actually, they arrested him. California has a standalone statute for hate crimes and an enhancer. So they're looking at he's looking at an additional one to three years. If he's convicted, based on the enhancer also he's got the stand-alone. So he'll be charged with assault. He'll be charged with assault as a hate crime. They're also investigating a separate assault with him as a suspect of a like 83 year old Asian man or that morning. So what that's going to go to his intent. Right? Right. Absolutely. You're going around the streets, assaulting different old Asians that shows maybe you have the intent and that's going to go back to that hate crime designation and can the prosecution prove it.

Right? Yep. Now let's have a little bit of a discussion Russ, because th there are, there are those there who argue, you know what? We don't need hate crime legislation. That's actually going to cause more problems than it would solve. Here, here are a couple of thoughts on that. I mean, let's, you know, let's, let's take the, the, the guy that we talked about earlier, a white man goes up and assaults a black man. Okay. Two scenarios. The first scenario he assaults him, takes his money because he wants to Rob the guy needs money to pay his bills. And so he beats them up, takes his money and goes home. The second scenario, he beats up the man, because he was black. The purpose of the beating was because the victim was black.

He's got him beaten. He still takes his money.

No, that ruins my hypothetical. It doesn't take the money. He only assaulted because he's black, but here's the point that I'm making, though, in both of those situations, we basically have the exact same crime. We have an assault. The outcome is the exact same. So why do we, I guess, why as a society, should we care on what the person's intent was? If his intention was to take money that didn't belong to him, versus he just has Hayden his heart for this person. Aren't, isn't the outcome, the same where they should be punished equally. That's what some people are saying. So that's, what do you think about that?

So the problem with that argument is that the repercussions of hate crimes are more significant and more detrimental to society than the repercussions of non hate crimes.

Th that's very well put chief just chief justice Rehnquist actually discussed this very issue when he was in a Supreme court opinion when he was discussing why hate crimes legislation is a good thing. This is what he had to say. He said, this conduct hate crimes are thought to inflict greater individual and societal harm bias, motivated crimes are more likely to provoke re retaliatory crimes, inflict distinct emotional harms on their victims and insight community unrest. I agree with that. I mean, I think w what he's saying is these are very palpable crimes. One thing I saw Russ is that 55% of hate crimes are spurned by thrill seeking behavior on the part of the actor on the part of the suspect. So we're talking about, we're not talking about a person whose best sprit is at the end of his rope, who needs to find 20 bucks in order to feed his family. We're talking about people who are looking for kicks on a Saturday night, who are looking to start some stuff. Right. And, and, you know, I think that that is a different category of offense than the latter,

And not just the perpetrators, like the, the victims victims of these crimes, like there's stats out there, like gay or LGBTQ individuals are like three to seven more times likely to commit suicide because of harassment that they've received, whether it's crimes or not, they are far more likely to be harassed. Right. So, so it has effects that are really far reaching in society in society. Now we've been talking about, you know, hate crimes, but what about hate in general? You know, what about it? Hey, what about the argument? Like, Hey, it's my right to hate. African-Americans, it's my right. It's my, my religion, my whatever brand of religion. I have says that those people over there are havens and they are going to hell, and they're probably corrupting my kids in my school and I hate them. Right, right.

Hate them under the first amendment of the constitution. Right.

That's my question. Right. And that, that actually has been upheld by the Supreme court, you know, and there was a case in 2007, pretty recently, Mattel versus Tam that upheld that hate speech, you know, which, which is this, you know, it's not clearly defined what that is, but basically just speech is protected first amendment rights. So you can, you can say really whatever you want, unless you're falling into some very specific classes of things.

Yeah. Y'all remember Fred Phelps and the Westboro Baptist church. This is the little religious group that would protest military funerals for for people who were killed in conflict. They would they were very, very vocal. You know, for example there was a Supreme court case that went all the way to Supreme court in 2011 involving a man named Snyder whose son was killed overseas. He was a us military officer and he was killed and at his funeral, Westboro Baptist members came and had signs saying, thank God for dead soldiers. Couple of other words that I can't say on this podcast you know, pretty, pretty egregious speech and Snyder. The father of this fallen soldier sued the Westboro Baptist church on a claim of intentional infliction of emotional distress. And, and that case went all the way to the Supreme court in an eight one decision Rus,

The Supreme court upheld

Westboro Baptist churches, right to free speech. They were not committing a crime. They were just speaking. They were they were frankly exercising their religious beliefs and their

Do that. That's still good law there. They're allowed to do that as reprehensible as it is, they can do it. Right. And you know, the first amendment is something that is so misunderstood by so many people. Like I, I had, I had a, I mean, it wasn't an argument, but, but a heated discussion with my 13 year old son, because he believed everything was protected by the first amendment. Now everything's not, you can't the classic example is you can't go into a crowded theater and yell fire. Right. Right. That's not protected speech. Right. Obscenity is not protected, fighting words, which is something that's likely to promote incite violence. Exactly. None of that's protected, but, but something like this, this, however, agregious, you may think it is to just treat military mourning, military families like this that's protected. You have a right to do that in this country. Exactly. But you can't act on it.

Exactly. And I think that's, that's the distinction. And, and that's, I think, I think you can see that bright line. I mean, there's a difference between saying your beliefs and espousing your beliefs, but then taking your beliefs and I guess, inflicting those beliefs on another person, generally speaking in most areas of law, you're not allowed to do that, including including hate crimes. So anything else? Do we have anything else on hate crimes that we need to touch on?

I don't think we have anything else on hate crimes. And so everyone out there who's been listening recently. You know what that means?

[Inaudible] Ladies and gentlemen step right up. It is time for the dumb criminal. Although we, for those,

You tuned out our entire episode just to get to this point, you can turn your listening ears on that. You can tell your friends were to fast forward to them.

Don't do that because they're going to learn something.

So this one is about a gentleman from the Welsh village of Traer Archie, another one across the pond. There's there's a lot of, I mean, they're everywhere. Colony dumb criminals are everywhere. This is a young man by the name of Dean Smith, who at the time this happened was 27 zeros. He's

Four. He was the coach university of North Carolina.

The basketball coach, right? Yeah. Dean Smith. Didn't he didn't he recently retire.

He might've, I don't know. Okay. Well, someone can tell, I was going to say he might've died, but I don't want to start talent titles here. Sorry, Dan, if you're listening.

So, so this guy, Dean Smith, he goes into his local bank is his local branch of Barclays so far that's okay. Okay. This is fine. He goes in, he just went in to change his address so far so good. Yep. So he goes up and he changes his address success so far while he's in there, he notices that there is a lot of cash in the, till it is a bank. So now, now just to set the stage, here's a picture of old Dean Smith. Dean Smith is, has dark, shaggy hair, very distinctive hair. He has two earrings, different colors in each year and their gauge earrings. So they're very distinctive earrings. So he leaves, he decides, Hey, I'm going to knock this bank over. You know, I don't know if that's what they say in England or in the Welsh village of true Chorey. But, but, so he says, I got to disguise myself. So what he does to disguise himself first, he doesn't want them tracking his footprints. So he puts socks over his shoes. He then puts on genius, Collin. He puts on sunglasses, Oh man, no chance. He's going to get identified

Because it's totally normal to wear sunglasses inside. Everybody knows that.

So he goes back in literally 30 minutes later,

30 minutes with not 30 days,

Nope. With sunglasses and socks on his shoes and demands the money, the kid of haircut. He did not do anything except put on some lessons and knowing we're talking about, you know, the United Kingdom, it was probably cloudy. Right? Exactly. So, so yeah, the cashier refused to give him the money and the cashier, when the police came said, here's his address? He just updated it. So, so when, when asked about it, he admitted that he had been quote

Very stupid. Hey, honesty. At least he admitted that two and a half years. He got to

Two and a half years in jail and he didn't even get the money. No, no. He didn't have a gun. He had some sort of bladed weapon, but it clearly didn't intimidate the clerk enough to know

Have the clerk given the money. I think she was quite she probably realized, okay, this guy is a little bit, a bit more on he's not going to hurt me. He's too. This isn't well thought out. All right. Well, what do we think, man? I guess I'll go first this time. This feels to me like three and a half knuckleheads Russ. I I, I think that I want to penalize him for actually not obtaining any money in the transaction. I mean, as far as bank robbers go, I think that the, that you at least should get some points if you manage to abscond with some cash, even if you don't get out the door.

Right, right. Picturing like, yeah. Two sacks with money signs on them. That's what I want to see. Right. Jingling. Yeah. Maybe some bullion and

You know, so I, I want to take a, I guess a way, a couple of points from the fact that he didn't succeed really at all. And but I will say, I mean, the stupid factors are pretty good there in the sense that he waited only 30 minutes. I mean, what, what what a bold new, I mean, same cashier, same. Same shift. I mean, boy.

Yeah. I, I see no redemption for this guy. I think this is a massive knucklehead. I'm, I'm giving my first full five, five knuckleheads. There we go. Yeah. So there, there you go. Dean, if you're listening, hopefully you have reformed. Hopefully you got to jail. Yeah. Hopefully you've gotten out of jail. I think he has by now. I think this happened like mid, like about 2014. He'll he'll be back in again. I'm sure. Anytime. I mean, right. With those kinds of moves, he's like frequent flyer. I'm pretty sure. Yeah. So that's, that's what we have for you today. Folks as always hit us up on Twitter is this legal pot on Facebook Hebets. Mccallin, email us, look us up on our website Hebets, McCallin.com. And we're always looking for new topics. So if anyone out there has questions, we'll throw them in the mail bag to be done shortly and stay, stay positive, my friends and stay legal.

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