A critical part of the majority's decision is based upon its conclusion that the evidence did not necessarily prove that the victims' religion was a but-for cause of the assaults. That conclusion strikes me as untenable — indeed, deeply disturbing in its implications....The criminality of the assaults is obvious, but is it a federal crime, a "hate crime" under 18 U.S.C. § 249(a)(2)(A)? It is if it's done "because of the actual or perceived . . . religion . . . of [that] person." The problem is that the trial judge's instructions translated that into a need to find that the victims' religion was "a significant motivating factor," but the appellate court said religion needs to be the "but-for" cause (that is, without this motivation, the act would not have taken place).
[T]he assaults... came in the wake of a profound rift within this particular Amish community. [The Bishop of the Bergholz community, Samuel] Mullett had excommunicated several church members for challenging his leadership.... Mullett was angry.... The series of assaults then followed, under Mullett's direction. The victims were all Amish individuals who were apostates in Mullett's view.... As the court notes, Amish men do not trim their beards, and Amish women do not cut their hair, "as a way of symbolizing their piety, demonstrating righteousness and conveying an Amish identity.
Lederman assumes the court is right about that but buys the government's argument that the error was harmless.
Based solely on the undisputed facts described in Judge Sutton's opinion... it appears to be clear that at least some of the victims--those who were excommunicated or who left voluntarily, at a minimum--would not have assaulted but for the fact that Mullett viewed them as heretical. (Mullet said that beard and hair cuttings would stop people from being “Amish hypocrites.”) And that's true even if the particular assailants were motivated in the first instance by other factors, such as interfamilial disputes or anger about nonreligious actions of the victims....The court, however, stresses the motivation to attack. You might attack someone for nonreligious reasons, but choose as the form of attack to do something that would hurt them because of religion.
[And] isn't it plain beyond any doubt that the victims' religion was a but-for cause of the type of bodily injury that occurred here — the cutting of beards and hair? The assailants obviously chose to use that very unusual form of assault because the hair and beards were of deep religious significance to the victims — indeed, to strike at a fundamental component of their religious identity, by deliberately imparting a tangible, humiliating public sign that the victims were religious outcasts.
The court uses this striking analogy:
[G]iven that this is the Matthew Shepard Act, imagine that a child tells his parents he is gay. As a result of their faith, the parents ask the child to undergo reparative therapy. The child resists, the parents dig in, all three fight verbally about everything from faith to family obligations. At some point, the child snaps. He assaults the parents and does so in a faith-offensive way—by physically forcing them to eat non-kosher food, by tattooing 666 on their arms or by taking some other action that deeply offends their faith. No doubt faith entered the mix from both sides of the assault, but there is doubt about whether the parents’ faith broke the camel’s back in terms of why the child committed the assault. That the means of assault involved religious symbolism confirms only that he knew how best to hurt his parents. It does not seal the deal that his parents’ faith, as opposed to their lack of support for him, was a but-for motive of the assault.Whether you, like Lederman, reject the court's separation of the form of the attack from the motive to attack may depend on what you think taking the kinds of crimes that were traditionally prosecuted at the state level — physical attacks — and making them federal crimes because of a "hate" element. Lederman notes that the court may have been trying to avoid getting to the question whether the federal statute is supported by the commerce power.
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Shows the ridiculousness of the "hate crime" law to begin with. That his guilt or innocence of this particular crime hinges on proving beyond a reasonable doubt what his subjective motivation in committing the assault was is just absurd.
I've never liked Federal intrusion into local crimes of passion. It's a huge bat; swung for political reasons; and intrudes on the most basic liberty: the unfettered act of thought, which shouldn't be analyzed by those that are only a granted the power to allow justice and equity.
Whatever the motivation, criminal acts have sufficient punishments, without interjecting suppositions of the motivation and punishing for that alone.
How small can your group be in order to designate a crime against you as a hate crime?
One of the Althouse commenters punches me and breaks my nose. I ask, Why did you punch me? The assailant says, Because you're an Episcopalian. Or the assailant says, Because you have stupid opinions and won't stop posting them. (Both statements are undoubtedly true, but that's no defense.)
Why should the answer change the nature of the crime? Or convert a State law assault into a federal hate crime?
Yes, I know there are certain circumstances in which "hate" may exacerbate an offense. If you paint swastikas on the synagogue that is more offensive than painting Kilroy was Here. But why not consider such a factor at sentencing, not by defining the former as a different crime?
How can that be harmless error? "Significant motivating factor" requires a different and less stringent view of the evidence than "but for." On the exact same facts, a jury could convict under "significant factor" and acquit under "but for."
Why were the feds prosecuting this one? Was there no state prosecution for battery? The evidentiary and political issues of hate crime legislation apart, it's not a great idea to create a federal crime where the states have a consistent and serious basis for prosecution.
"One of the Althouse commenters punches me and breaks my nose. I ask, Why did you punch me? The assailant says, Because you're an Episcopalian. Or the assailant says, Because you have stupid opinions and won't stop posting them."
You're missing the third situation, which is what the case is about:
The assailant says: Because you have stupid opinions and won't stop posting them and I knew that, being an Episcopalian, you have a special problem with punches in the nose.
"Yes, I know there are certain circumstances in which "hate" may exacerbate an offense. If you paint swastikas on the synagogue that is more offensive than painting Kilroy was Here. But why not consider such a factor at sentencing, not by defining the former as a different crime?"
That's not within the court's purview. It must look at the statute. What does it mean (and does the Constitution override it)?
Also, about those swastikas, and, again, to align it with the issue in the case, distinguish:
1. X has a quarrel with Y, who is Jewish. The quarrel is over money, a love affair, or some such nonreligious matter. X expresses hostility by painting a swastika on Y's house, knowing that because Y is Jewish, the swastika will be especially painful.
2. X has hates Y because and only because Y is Jewish and X hates Jews. X therefore maliciously paints a "Kilroy was here" on Y's house.
I hate hate crime legislation. Making the same or similar crimes badderer for some groups than others is the perfect formula for building resentments.
If you get the crap beat out you it doesn't matter if they were yelling 'filthy faggot' or 'filthy muslim' or just shut up and went about their business, you still got beat up just the same.
For me to find you guilty of a hate crime, it is required that I know what is in your heart. I can't know what is in your heart. Only to people know that, you, and God. Any law that requires me to take the place of God, is inherently bad.
Human beings do not suffer as the result of bad motivations, they suffer as a result of bad actions. I can judge actions.
If someone punches me in the face, and breaks my nose, the level of harm is not increased, or lessened based on the motive of my attacker. I have a broken nose. The law stipulates a penalty for assault, and should be enforced.
When the law defines one persons nose to be of more value than another's, based on situation, the law is no longer a tool for justice, but has become a tool for revenge.
I'm sorry. I tried to read this.
But... a man named Mullett is the central figure in a crime involving hair. Can't do it.
Althouse said/asked:
Also, about those swastikas, and, again, to align it with the issue in the case, distinguish:
1. X has a quarrel with Y, who is Jewish. The quarrel is over money, a love affair, or some such nonreligious matter. X expresses hostility by painting a swastika on Y's house, knowing that because Y is Jewish, the swastika will be especially painful.
2. X has hates Y because and only because Y is Jewish and X hates Jews. X therefore maliciously paints a "Kilroy was here" on Y's house.
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"But for" religion applies in each, albeit at a different level.
In the first example but for Y's Jewishness X wouldn't have painted a swastika on his house. In other words *what* he painted was related to Y's religion, not whether he painted.
In #2, but for Y's Jewishness X wouldn't have painted anything on Y's house. What he painted didn't matter but whether he painted was motivated by Y's religion.
That distinction may be rather obvious, but it likewise renders obvious that fact that hate crimes are indeed thought crimes.
As to the Amish case I suspect that the Court was wrestling with the fact that this was an Amish on Amish crime. While it may not be clear from the language of the statute I'd venture that the legislative intent did not contemplate intra-religious crimes.
As I understand it hate crime laws are justified as necessary to deter attacks that intimidate or terrorize a given group. That is, hate crime laws are premised on the idea that targeting certain people for a given set of attributes or beliefs can have a larger impact on the group sharing those attributes or beliefs and therefore additional punishment is required to deter (and, I guess, punish) such crimes.
As I read the pasted information, then, the question seems to be whether using a specific form of attack would in itself have the wider "terroristic" effect that hate crime laws seek to punish. If a criminal targets someone for being a memeber of a protected minority that attack hurts other memebers of that minority (according to hate crime law supporters). If a criminal targets a member of a protected minotiry of reasons unrelated to their minority status but the attack takes a form designed to harm the victim through some aspect of their minority status (belief, identity, etc) does that harm the wider community and thus become the situation hate crime laws are meant to address?
All the Court's analogies are striking: "the Elmer Gantry of the Amish community," "the father violently grabs a cross pendant hanging from the man’s neck, yelling 'You hypocrite,' and injures the man’s neck in the process," "And even ostensible faith leaders,whether Samuel Mullet or Henry VIII, may do things, including committing crimes or even creating a new religion, for irreligious reasons."
Do you think there's some angry clerk complaining about how the opinion was perfect until Judge Sutton decided to add a weird Sinclair Lewis reference?
ALL hate-crime laws should be ruled Un-Constitutional.
Should have just overturned the conviction because the federal government has no authority to pass this kind of legislation.
The judges wimped out. Prosecute them in state court.
Interesting case, but not so difficult given the only real issue was whether the admitted error in the jury instructions was harmless.
In refusing to give the 'but for' instruction requested by the defense, the district judge had expressed doubt about how the gov't could possibly meet that standard. Judge Sutton quotes that portion of the record twice, most pointedly at the conclusion of his harmless error analysis. the district court's reason for refusing to give the required 'but for' charge strongly undercuts the gov't's argument that the error was harmless error. It's hard to square the district court's view that the gov't couldn't prove 'but for' causation with the gov't's claim on appeal that the evidence as to religious motivation was either uncontested or so overwhelming as to beyond a reasonable doubt.
Judge Sutton made two other points that caused him to reject the gov't's harmless error argument. First, he marshals the evidence showing other motives for the assaults, and quotes Justice Breyer's opinion in the Gross case noting the difficulty in sorting out actual motivation where the evidence points to mixed motives. Second, he notes that the jury in this case acquitted on one of the five assaults at issue, even though the evidence as to all five was more or less the same. He also notes that in two other cases involving prosecutions under the same statute, juries have acquitted on facts about motive similar to those involved here. The punch line for him (as it was for Justice Breyer) is that, where motive is the key issue, an error in framing the inquiry for the jury will almost never be harmless, precisely because any effort to draw an inference about motivation, especially a causal inference, is an inherently slippery and uncertain process.
The decision sounds right to me, and especially so given the importance of having these questions decided by a jury.
Professor, I don't think it's worthwhile to get in-depth into your hypotheticals because I think the existence of the statute itself is absurd, and to engage those hypotheticals is to concede its validity and worth. The fact that the statute, if valid, would cause us to spend substantial time trying to split the hairs of those hypothets is part of the reason why the hate crimes statutes are ridiculous.
"As to the Amish case I suspect that the Court was wrestling with the fact that this was an Amish on Amish crime."
No, the court was wrestling with the distinction I keep trying to explain.
"Interesting case, but not so difficult given the only real issue was whether the admitted error in the jury instructions was harmless."
No, the government argued that the instruction was correct, and much of the opinion deals with the problem of the distinction I'm talking about.
Marty Lederman concedes this point in his discussion, however.
I don't think the harmless error issue is easy though, because there's a dissenting opinion (and Lederman agrees with it).
It seems fairly clear that the acts would not have been committed were the victims perceived by the actors to be Hindus, or Scientologists, or indeed to have any other religious inclinations than precisely those they had. Of course, the idiots that wrote this abomination had intended to punish me for hating Muslims, not the Amish for hating each other.
@Althouse: Thanks for noting my comment this morning. Like most commenters, I'm just looking for attention. But when you say:
"You're missing the third situation, which is what the case is about"
You're missing MY point. I'm NOT a law student trying to understand the fine points of the opinion. I don't give a sh*t about the fine points of the opinion because my point is that there should not be such a thing as a "hate crime" law, so the way that the government, or the court, or the appellate court, or the lawprof, defines what is, and what is not, a hate crime is irrelevant to me. It's an interesting exercise, indeed, and if you were 20 years older I would have enjoyed taking your class (but you would have to have moved uptown to Morningside Heights, sorry).
The gov't's argument about the jury instruction was foreclosed by both intervening S Ct precedent, and existing 6th Cir precedent. On that point, the court was unanimous. All that was left was the harmless error issue.
As for the distinction between a motive for the assault and a motive for the specific form of injury, that is only neat and tidy in a classroom, not a courtroom. Your clinically drawn examples up thread about the swastika and Kilroy are worlds removed from how those factual issues would be presented in a trial. The jury's function is to sort through the conflicting evidence and decide what the facts are, including especially the facts about motive and intent.
This trial sounded absolutely typical in having lots of overlapping, sometimes conflicting relationships between and among the key players, bringing into play all the usual factors bearing on motive and intent: power, anger, control, jealousy, envy, fervor, favoritism, fanaticism, and on and on, all arising in the context of a tight-knit and religiously self-defined community. Deciding what was the essential factor without which a defendant would not have acted is not easy.
What makes the case easy for me is the necessity of having those issues decided by the jury, after being properly instructed on the law (including the significance, if any, of distinctions between kinds or levels of motivation).
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