Fresno killings and the issues around hate crimes

What is a hate crime?
What is a hate crime?

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Story highlights

  • Triple homicide may indeed have been motivated by hate, Danny Cevallos says
  • But, he asks: Does it do any good to prosecute such killings as hate crimes?

Danny Cevallos (@CevallosLaw) is a CNN legal analyst and an attorney practicing in the areas of personal injury, wrongful conviction,and criminal defense in New York, Pennsylvania, and the US Virgin Islands. The opinions expressed in this commentary are his.

(CNN)Police are calling the fatal shooting of three people in Fresno, California, a "hate crime." The three victims were white, and the suspect, Kori Ali Muhammad, 39, is black.

Muhammad had apparently expressed negative sentiments about white people and also government officials. He also yelled "Allahu Akbar" (God is greatest) when he was arrested Tuesday, officials said.
Muhammad allegedly fired 16 rounds in a short period of time, gunning down three white men, and shooting at a fourth. He also allegedly pointed the gun at three Hispanic women from close range, but didn't fire.
    He was already a suspect in a fatal shooting last week of an unarmed security guard shot outside a Fresno motel.
    In California, a hate crime is a crime committed, in whole or in part, because of an actual or perceived characteristic like race; it results in an enhancement in punishment. That certainly seems appropriate in light of Muhammad's alleged crimes.
    And labeling such horrendous deeds as hate crimes has the benefit that it fosters the idea that we are combating racism and other bias in society, and that's a good thing. But at their core, the notion of a separate category of crimes known as "hate crimes" makes no sense. This case is an example.
    Why are hate crimes so problematic?
    First, and most importantly, the notion of a hate crime flies in the face of fundamental principles of criminal law. The mental element of crimes, the "mens rea," focuses on the intent behind a person's action -- not the motive.
    A person commits a criminal act "intentionally" when the conscious objective or purpose is to engage in the forbidden act, or achieve an unlawful result. Motive, on the other hand, is the reason WHY a person chooses to engage in criminal conduct. Motive is not an element of a crime (though it can be evidence of one's intent).
    This rule makes sense: In the typical fatal shooting, criminality is diminished if it is accidental. Murder, on the other hand, is still murder whether the shooter was upset he was laid off, or irritated by traffic. We care that the killing was intended ... not why it was intended.
    Second: Muhammad's Facebook posts that "he does not like white people" illustrate another problem with hate crimes. This post is not a nice thing to say, but it's constitutionally protected speech. A prior Facebook comment is also not conclusive proof of a racist motive at the moment he allegedly began his shooting spree.
    That's why injecting motive into criminal law is problematic. It's hard to prove -- even when someone admits to their racism on social media.
    Suppose a person posts something racially divisive about Asians on Twitter. Then, several months later they are involved in a bar fight, that happens to be with a person of Asian descent. Should the law presume that this is a hate crime? It's definitely possible, but then again, it's also possible it was just your average Friday-night beer-muscles bar fight. This view isn't going to garner a lot of sympathy, but presuming all acts of a racist are always motivated by racism is a legal stretch.
    Police: Killing of 3 white men is a hate crime
    Police: Killing of 3 white men is a hate crime

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      Police: Killing of 3 white men is a hate crime

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    Police: Killing of 3 white men is a hate crime 01:00
    Muhammad also allegedly shouted "Allahu Akbar" as he was arrested. It's hard to say how this could be evidence of a hate crime. These are Muslim words of prayer. Law enforcement so far does not believe this to be an act of terror. Acts of terror are generally intended to intimidate or coerce a government or civilians in furtherance of political or social objectives.
    Are these religious words evidence of "hate"? Even if it's arguably evidence of bias, that bias would be against religion, more than it would be against white people. Prosecutors might be reluctant to say those words of prayer are tantamount to a general animosity against other races.
    Third: Hate crimes lead to potentially nonsensical results. Muhammad allegedly shot three white people this week. What if Muhammad had been white? A white person's statements on Facebook that he didn't like white people might be dismissed as a bad joke, rather than evidence of racial motive. Even more bizarre, could Muhammad have avoided hate crime allegations by also killing three black people in addition to the three white people?
    Should Muhammad's defense attorney be able to unearth the the victims' genetic heritage or argue that they didn't look or act "white enough" to be targeted for their "whiteness"? These are interesting questions for smoke-filled coffee house conversation, but maybe not the best use of limited judicial and prosecutorial resources.
    Fourth: Hate crimes are unnecessary. They are often redundant. In Muhammad's case, first-degree murder in California is punishable by 25 years to life. If it's a hate crime, that gets bumped up to life without the possibility of parole.
    That may sound like a big difference here, but it's not really. Muhammad is charged with four counts of murder and two counts of assault with a deadly weapon. He also has a prior record. Even if he was convicted of only one murder, no judge is going to give him on the low end of the 25-to-life sentence. He's going to get maxed out. The hate crime enhancement here just ensures the life sentence he would have gotten anyway.
    Parenthetically, I recently argued in a column that criminals who post videos of their crimes online should be subject to additional crimes or penalties. Many correctly pointed out that this would probably not prevent killers from taking lives. That's true of all criminal law though; if it prevented crimes then we wouldn't have crimes. The best we can hope for is a modicum of deterrence.
    Fifth, and perhaps the most important, by considering some killings more egregious than others, hate crimes necessarily value one life over another.
    Even assuming Muhammad did shoot white people because he hates white people, what if he'd missed and killed someone of another race? It would feel unjust if Muhammad received a lesser punishment for a victim who died in exactly the same way as the others.
    Hate crimes are ineffective, constitutionally suspect, unwieldy and redundant. Yet, they may still be justified in our society, for a reason that often validates otherwise bad legislation:
    Hate crime legislation just makes us feel better.
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    And there may not be anything wrong with that. There are plenty of examples of placebo, feel-good legislation.
    The federal death penalty is little more than a vague tough-on-crime policy; the federal government hasn't executed anyone since 2003, and has executed three people since 1963. The point is, we've always been a little self-delusional; we tell ourselves what makes us feel better, because the reality is sometimes too depressing.
    The law is no different. Some laws do little more than make us feel like we're addressing a problem. Eradicating racism is a matter of evolution; it's largely beyond the reach of the penal code.
    We should reserve our most severe penalties for alleged killers like Muhammad. But our law already does so, without hate crimes. Hate crimes serve a purpose, but that purpose is not efficiency or deterrence. The purpose is satisfaction. And for voters, sometimes that's enough.