the daily snivel

  Hate Crimes

Hate crimes legislation seems to be impugned on a fairly regular basis in the United States on the basis that it "elevates" one group above another when a crime is committed. I'm not sure to what degree US hate crimes legislation is similar to Canada's, but the Criminal Code of Canada provides that a motive of hatred should be considered an aggravating factor when determining a sentence upon conviction, pursuant to section 718.2(a)(i). That is, it isn't the race of the person you assault (or murder) that aggravates the circumstances, it's your motivation in attacking them. I've always thought that such a provision is quite rational given the proper denunciation such crimes merit.

In any case, I've rarely seen a defence of punishing hatred as eloquent and well-reasoned as Dave Neiwert's. Here is an excerpt:

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First: The principle of proportionality in sentencing is a fundamental aspect of criminal law. Society has always chosen to punish crimes more or less harshly according to the culpability of the perpetrator, particularly the level of harm he inflicts. This is why, in the case of the death of another person, someone may face charges ranging from first-degree murder to third-degree manslaughter.

Take, for instance, the case of an elderly woman smothered in her sleep. If the perpetrator is her nephew eager to collect on his inheritance, then he is likely to face first-degree murder charges and a possible death penalty. If it is a begrieved husband carrying out the wishes of a dying Alzheimer's victim, then prosecutorial discretion comes into play. Which do you think is more worthy of a harsh sentence?

The principle responsible for the difference here is mens rea, or the state of mind of the accused. Mens rea involves both intent and motive. Harsher sentences traditionally have been assigned to crimes committed with intentions and motivations considered more harmful to society at large.

Now, you may ask, are hate crimes more harmful than the crimes for which, as the editorial points out, there are already laws on the books? Well, ask yourself this: Is a swastika painted on a synagogue the same thing as graffiti scrawled on a downtown wall? Is an assault in which the perpetrators sought out gay or black people to send a "message" the same thing as a bar fight?

Are hate crimes truly different from their parallel crimes? Quantifiably and qualitatively, the answer is yes.

The first and most clear aspect of this difference lies in the breadth of the crimes' effects. Hate crimes attack not only the immediate victim, but the target community -- Jews, blacks, gays -- to which the victim belongs. Their purpose today, just as it was in the lynching era, is to terrorize and politically oppress the target community. The laws against them resemble anti-terrorism laws (which, it must be noted, are also predicated on enhancing the sentence based on the motivation of the perpetrator) in this respect as well.

But this is only one aspect of how different hate crimes are from their parallel crimes. There are several more, and they are substantial. Bias crimes are far more likely to be violent than are other crimes. They also may be distinguished by their extraordinary impact on the victim. As bias-crimes expert Frederick Lawrence notes, "Bias-crime victims have been compared to rape victims in that the physical harm associated with the crime, however great, is less significant than the powerful accompanying sense of violation. The victims of bias crimes thus tend to experience psychological symptoms such as depression or withdrawal, as well as anxiety, feelings of helplessness, and a profound sense of isolation."

Finally, bias crimes cause an even broader injury to the general community, both local and national. They create racial distrust and misunderstanding within the immediate communities where they occur, and their occurrence can cast a shadow over an entire community's reputation. (Just ask folks in Jasper, Texas.) Perhaps just as important, they violate basic principles of equality of opportunity and freedom of association by threatening and intimidating targeted segments of society, and widen the not-insignificant racial divide in this country.

Not only are bias crimes substantially different in nature from their parallel crimes, there is no question that they cause substantially greater harm, so a harsher punishment is fully warranted.

Second: Hate-crime statutes are neither written to protect specific classes of persons from assault nor to enhance the charges simply when a person from a "protected class" is the victim of a crime. We don't have laws that create stiffer time if you simply assault a black or a Jew or a gay person. The laws don't even specify races or religions. Such laws would be in clear violation of basic constitutional principles, including the equal-protection clause.

In fact, the actual class status of a victim is almost secondary to the decision whether or to file a hate-crimes charge or not. The primary concern is the motivation of the perpetrator. All of these laws are written to punish people more severely for committing a crime committed with a bias motivation.

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Now, think about what this means: Everyone has a race. Everyone has a creed. Everyone has beliefs about religion. Everyone has an ethnic origin, and for that matter a sexual orientation. As such, the laws are written to protect everyone equally from criminals who select them intentionally because of their racial, ethnic, religious, or sexual identity. There are no "protected classes" or "special victims" per se, only prosecutable motives.

This is why someone who assaults a Sikh under the mistaken belief he is Muslim, or a straight man believing he is gay, may still be charged with a hate crime. It also explains why, if you look at annual FBI statistics for hate crimes, you'll see that nearly a thousand black-on-white hate crimes, and several hundred anti-Christian hate crimes, are reported (and most of them prosecuted) annually. The law is written to protect everyone equally.

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  A bit of trivia for your Saturday afternoon...

It was with great satisfaction that, knowing I'll have 95 credits as of this April (92 are needed to graduate) after clarifying my status with the administration, I filled out and submitted my Registration for Degree and Request for Diploma form to the University of Ottawa. I'll never get used to the idea of "applying" to graduate, but in any case it's nice to know I've set those great, mysterious senatorial wheels in motion and will be receiving my Baccalaureate of Laws at the Spring Convocation in June of this year. Not only will I finally (finally!) be finished with university, but I'll be on the road to finishing my Bar Admissions Course and then onto articling at a law firm in Toronto.

It's nice to see all that hard work finally paying off (he says, as he procrastinates on his Advanced Family Law essay). 

  What's The Deal With John Stossel?

While flipping through the channels on another pointless Friday night of staying in and listlessly writing an essay, I stumbled across the smarmy voice and mustachioed face of ABC 20/20 co-anchor John Stossel, a self-satisfied reporter I hadn't seen in quite some time. But I'd always associated him with the sort of slanted journalism that comes from quick conclusions and innuendo and just a soupcon of ideology-powered sensationalism. He's always reminded me of that sleazy reporter who gets electrocuted Tazered by Bonnie Bedelia ("Mrs. McClane") in Die Hard 2: Die Harder.

Anyway, I just couldn't turn away because tonight was a full 20/20 special on some "Myths, Lies and Nasty Behavior" that frankly had me surprised and even a little upset. These great hits included libertarian rants about how sharing is bad, because littering and the depletion of the world's ocean fisheries was the fault of the "tragedy of the commons" and that privatization could solve woes like elephant poaching. He also argued that foreign outsourcing of labour actually created more jobs (and without looking at the numbers I might grant that maybe this could be true in total, but query whether the jobs created were full-time or had benefits, which Stossel did not). He then argued that subsidizing farmers was a waste of money that did nothing to sustain agriculture. Again, I'm just jerking my knee and not diverting my attention from my very-important-essay-due-on-Monday to do extra research, but I already see a contradiction between two of his express arguments (1. farmers who can't stay profitable should just go out of business that's the way the system works and we shouldn't reward inefficiency, vs. 2. businesses that aren't profitable should outsource their labour overseas because if they went out of business that would be bad, oh think of the children). Which isn't to say there are plenty of problems with subsidies, like the vast amount that goes to huge agribusiness. But it's just intellectual laziness to say, farmers are welfare queens and that's bad, m'kay?

Next is the argument that suburban sprawl is good for America, and that 95% of America is undeveloped and that must mean there's tons of room to grow. I've seen this kind of lazy math as frequently popping up in Stossel's arguments in the tiny bit of Google-research I did do in my tizzy tonight. Basically he's looking at the total land area of the United States and dividing it against the developed land area -- evidently not taking into account the large areas with small populations like Alaska, where development is always going to be limited. Nor does he take into account how much arable land is being consumed, and wetlands drained, by urban sprawl, which is one of the real arguments against it. Stossel then states policies limiting urban sprawl mean that "poor people can't have back yards," because property values go up when urban sprawl is constrained, and "what some people call sprawl, others call homes they can afford." But, I'm sorry, suburban developments are generally new homes that are quite pricey (and would be more expensive if urban areas didn't subsidize suburban living through property taxes, given their inordinate usage of spread-out infrastructure) and out of the price range of poorer buyers, especially younger buyers. My brother and sister-in-law just bought a house in Vanier (an old, established, traditionally working class and French-speaking neighbourhood) that will be quite lovely for a first home, but certainly isn't new, and they certainly wouldn't have been able to afford such a home in new, sprawling Orleans or Kanata, which are the suburban developments spreading out from Ottawa. The only link to reality that Stossel's argument has is: "richer people buy new homes in the suburbs and that means there's more older homes for poor people to buy" -- but again, query whether those of us who live in established neighbourhoods, especially built-up urban areas, are subsidizing these new suburbs with property taxes, and whether suburbs consume more than they contribute.

Anyway, I was ticked. Stossel is, unsurprisingly, widely quoted on conservative websites and forums, which is unfortunate and ironic given that his sloppy research methods and intellectual dishonesty put to shame any critique of those of their hated "librul" foe, Michael Moore. I looked up some good refutations on-line, and thought I'd include them here for reference:

Fair.org on John Stossel. They do, among other things, a great job with his book, Give Me A Break.

For example:

At the core of much of Stossel's reporting is his fervent belief in the efficiency and justice of laissez-faire capitalism, and the evils of most forms of government regulation. To Stossel, a fact like persistent U.S. income inequality is merely dogma circulated by lazy journalists who don't know the truth. But it is Stossel's reporting that often gets it backward. In his "Greed" special (2/3/98), Stossel reported that while management compensation had increased in the past 15 years, "that doesn't mean the workers were hurt. Factory wages were up, too--up 70 percent." According to the Bureau of Labor Statistics, at the time the show aired, wages for manufacturing workers had risen 55 percent since January 1983. But Stossel's real statistical sleight of hand is that he didn't adjust for inflation. Taking inflation into account--which is indispensable for determining whether "workers were hurt"-- factory workers' real wages fell by more than 6 percent between 1983 and 1998.

Stossel's rhetoric on poverty relies on similarly mistaken statistical formulas. Consider this claim (1/27/01): "America now spends about $40,000 a year on every family of four below the poverty line.... You could just cut them a check for that and they'd be out of poverty." This figure seems to derive from the work of Heritage Foundation welfare analyst Robert Rector, whom Stossel had cited in previous specials. In a 1995 book, Rector calculated that the government spent $324 billion on "welfare." When that number was divided by the number of families then below the poverty line, the result was roughly $40,000. The problem? Rector's number for total "welfare" spending includes programs that go to millions of non-poor families--including spending on Medicare and Medicaid, two of the most expensive government programs. Rector takes this total amount, and then divides this by the number of poor people alone. Such a figure tells you nothing about what benefits to poor people alone actually cost.

See also Sourcewatch:

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in Washington, D.C. Russell Mokhiber and Robert Weissman reported that when it came to the question and answer session Stossel was asked: "If you believe that consumer reporting works, and is a better regulator than regulation or lawsuits, why did you stop doing it?"

"I got sick of it," Stossel responded. "I also now make so much money I just lost interest in saving a buck on a can of peas. Twenty years was enough. But mainly, I came to realize that the government was doing far more harm to people than business and I ought to be reporting on that. Nobody else was."

In January 2004 Stossel's book - Give Me a Break: How I Exposed Hucksters, Cheats, and Scam Artists and Became the Scourge of the Liberal Media - was published. "In Give Me a Break, Stossel explains how ambitious bureaucrats, intellectually lazy reporters, and greedy lawyers make your life worse even as they claim to protect your interests. Taking on such sacred cows as the FDA, the War on Drugs, and scaremongering environmental activists -- and backing up his trademark irreverence with careful reasoning and research -- he shows how the problems that government tries and fails to fix can be solved better by the extraordinary power of the free market," the promotional material proclaims. [2]

Writing in LA Weekly, Greg Goldin, cited Stossel's 1996 comments in a story on a launch party for the book, noting in passing that "Stossel, sipping a vodka tonic, seemed a lot more hedonistic than his admirers". [3]

Subsequently Stossel penned a letter to the editor of LA Weekly challenging that he had been drinking a vodka tonic and that he had made the comments: "The alleged source of that quote was a 1996 speech I gave to the Federalist Society in which I supposedly said that I stopped consumer reporting because 'I got sick of it. … I also now make so much money, I just lost interest in saving a buck on a can of peas.' That doesn't sound like anything I've said and certainly doesn't reflect the reasons I shifted my focus from consumer reporting to government programs and lawyers (I shifted because I concluded they do more harm to consumers than business). The transcript of this speech that the Federalist Society supplied does not include the quote." [4]

In an April 2004 column, Russell Mokhiber and Robert Weissman reported that they had both a transcript and tape of his comments in the question and answer session. [5]

Goldin also reported that at his Los Angeles book launch a man in the audience challenged Stossel's exhortations on the benefits of free market capitalism. "During the electrical crisis L.A. was the only place that wasn't affected because we had public power. Meanwhile, Enron stole billions of dollars," he said.

In response Stossel claimed the collapse of Enron proved that the system worked. "There are no big national scams except for Enron. Because markets figure it out. Not the government. Enron is an example of how well the market worked for people. Enron's stock came tumbling down. When the government fails, we give them more money. So, yes, there are Enrons, but the exception proves the rule," he said. [6]

In response to Stossel's letter, Golden expressed his amazement at the claim that the Enron collapse was an example of the market working. "Enron collapsed not due to a stock tumble but because government investigations disclosed accounting fraud, and Ken Lay's Ponzi scheme was exposed. Most investors lost their shirts, and thousands of Enron employees lost their jobs. That's "how well the market works for people"? Perhaps we should ask, if John Stossel wasn't drinking a vodka tonic, what was he drinking?," he wrote.

...

"Meh," I say to you in my passionate throes of unimpressed disdain, John Stossel. A thousand times "meh." 

  Hooray! I'm Useful!

Today at my 5th driving lesson, I discovered that I'm quite good at parallel parking, which was a pleasant surprise for both myself and my instructor. I seem to have no problems at all with the clutch and with fine control when I'm doing things that require slow, tight maneuvering like parallel parking, three point turns, and so on, and so I relax and keep my actions at a less deliberate (and error-prone) level than when I'm putting it in first at a green light when there are lots of cars around, or shifting, steering 'round a curve and trying to go with the flow of traffic on a parkway. Basically multitasking at high speeds, or when speed is of the essence. Clearly the problem right now is relaxing, and practice will solve that.

That said, my evaluations are steadily going up. There's a checklist with scores my instructor fills out at the end of every lesson and I'm generally scoring between 7.5 and 10 (out of 10) on every element. The fewer mistakes you make and the less you need verbal instructions, the higher your score goes. Right now there's nothing I can't do fairly well -- practice and confidence are all I need now. I'm still making the odd mistake and still occasionally need a verbal cue from the instructor (e.g. "more brake, more brake, MORE BRAKE"). Still, I'm a lot more relaxed and confident in downtown traffic than I was, and I didn't stall the car at all on any busy city streets today, so that problem seems to be under control. Today, I stalled it once when I was backing into a parallel park and didn't compensate for the increased resistance of all the snow and ice on the street as I was creeping with the clutch, and I stupidly stalled it a second time on a quiet street when I stopped at a stop sign and didn't depress the clutch in time.

Anyway, it was quite gratifying to see that I really have the knack for parallel parking. Given that my mother only got her licence on the condition that she never parallel parked, I seem to be doing quite well.

Don't forget to tune in next week for the next exciting chapter of: The Law Student Driveth 

  Go get 'em, tiger

It's going to be a busy couple of weeks, as such things are reckoned around here. I got into negotiations with the Crown yesterday and although we came up with a fantastic deal for one of my clients, the details that will confirm it won't be in place for several weeks, meaning that I'm going to be preparing for a trial date coming up just in case. I'm also on the Hiring Committee at my precious Clinic, so in February we're going to be having a lot of meetings while we look at students' resumes, conduct interviews, and deliberate over our choices from the candidates for summer jobs as caseworkers here. Ultimately, when one factors into this busy little equation my other classes and obligations, it's looking like I'll be pulling a lot of 12 (or more) hour days.

Yesterday, pumped about my successful negotiations but stressed at the amount of work that still lays ahead (preparing for a trial is exciting, but preparing for a trial with lots of witnesses and charges that probably won't run is a little less exhilarating) I felt a bit overwhelmed, especially after putting in 8 hours of research at the Clinic on top of my court time and meetings and other file work. I'd been really busy for the past few days during what is supposed to be reading week for me (in other words, a law student's "Spring Break"), and while some of my friends are sunning themselves on beaches or visiting their families, I've been in court and waking up when it's still pitch black and howling wind outside (shiver).

And if you'd said I was infested with a plague of self-pity, you'd be right. But January does that to me.

This morning I felt a lot better. I'd gotten a chance to sleep in and think about things and how I was really excited about this case and the fact that it was entrusted to me, given that everything about it is last minute and requires a great deal of skill and care. Even as I'd been writing a research memo last night about the application of a section of the Criminal Code of Canada to my client's circumstances, I felt quite riled up about the unjustness of some of the charges. I tend to think that police investigators sometimes get caught up in tunnel vision -- discounting credibility problems and inconsistencies that get in the way of a charge against their suspect. The job of a zealous defence is of course to poke out all the holes within those charges and expose weak cases against the accused. And I started to think, "So what if I have to prepare for a trial that doesn't run. The point is, it might. And my client is going to be glad they have me on their side, because if this trial runs the other side is going to be sorry they ever laid those charges!"

And I mean that. I like a good fight, especially for a client I truly believe in. Sure I'll be busy. Sure I won't have time for that part time research assistant job I had my eye on -- or a girlfriend, for that matter, not that I'm swimming in offers. That's the way real life is sometimes. Demanding and unpleasant. But I'll keep on truckin' at the Clinic, keep on working out at the gym and, sure, I'll keep on going to bed broke and alone and lonely, but I'll be too plum tuckered out to care, dammit.

Yeah! Rock 'n' roll! And stuff.

My mood is also helped by the discovery that I will not, in fact, be one credit shy of the total needed to graduate. My university's degree navigator program indicated this flaw to me last week, and I worried that I'd have to add another course to my already hectic schedule. I contacted someone at the faculty today, and they told me it was a glitch in the system caused by one of the courses I'd taken, and reassured me that I have plenty of credits, more than enough to graduate, in fact. So no extra courses or graduation day surprises for me. Yay!

Hey, you take the good things as they come. Or, as I like to think of it, another day that ended without me being kicked in the nuts. Swee-eeeet. 

  Testing, testing

Well, after some haranguing from dear, dear Celeste, I decided to finally enable comments on my blog. I'd been reluctant to do so because it sets up an entirely different archiving system that tends to screw things up. Still, I'm putting my curmudgeonly ways on hold long enough to give it a try and see if it's really worthwhile. So, let me know what you think. 

  The War On Terra

Ah, sweet progress. From the most recent Harper's Index:

Revenue generated by Halliburton under CEO Dick Cheney from business deals with Iraq under Saddam Hussein: $30,000,000 [Colum Lynch, Washington Post (N.Y.C.) ]

Estimated revenue generated by Halliburton last year through subsidiaries in Iran: $63,506,000 [Halliburton (Houston, Tex.) ]

Minimum number of countries with a greater capacity to produce nuclear weapons than Iraq at the time of the U.S. invasion: 35 [International Atomic Energy Agency (Vienna) ]

Average black-market price in Baghdad of a DVD showing the beheading of a foreigner or Iraqi "collaborator": 50c [Richard Beeston (Baghdad) ]

Number of U.S. terrorism trials brought before a jury since September 11, 2001: 1 [U.S. Department of Justice ]

Number of terrorism convictions resulting: 2 [U.S. Department of Justice ]

Number of them dismissed in June due to a "pattern of mistakes" by the prosecution: 2 [U.S. Department of Justice ]

Percentage of poor Americans who lived in the suburbs in 1959 and last year, respectively: 17 / 39 [Harper's Research ]

Ratio of the number of poor Americans living in cities to the number who live in suburbs: 21:20 [Harper's Research ]

Via Corrente.