Disquiet in the Heartland

Quite a shit-storm brewing over at Is That Legal concerning my post on the boycott of ABC’s Aaron McKinney interview:


Disgusting ABC News Revisionism

John Allore points us to a nauseating development in the Wyoming murder prosecution of Aaron

McKinney for killing Matthew Shepard in Laramie in 1998. Breaching a provision of the deal that spared him from the death penalty, McKinney (via ABC News’s 20/20) is now telling a new story about killing Shepard that (very implausibly) denies any homophobic motivation.

Read the ABC News story. It’s transparently bogus, a disgusting play for ratings.

UPDATE: What do I mean by “transparently bogus?” What I mean is this: There’s nothing new here. The drug theory is not new. The defense contended at trial that McKinney’s judgment was clouded by drug use. This claim about a “new” motivation for the crime completely ignores the fact that McKinney himself conceded at trial that a homosexual pass from the victim triggered a homicidal rage in him. (This was the lovely “homosexual panic” defense.) The very fact

that the claim of “new” evidence is a claim about a new motivation for the crime defeats the notion that there’s anything to this. What, did McKinney just recently develop this “new” motivation, or his awareness of it? Did the defense not have every bit as much access to McKinney’s mental state at the trial in 1998 as they do now? And finally, there’s nothing in the “new” claim that in any way calls into doubt the original theory that an important part of McKinney’s motive was antigonism toward the victim because he was gay. If McKinney’s violent rage was also exacerbated by methamphetamine use (or withdrawal), so what? That does nothing to undermine the fact–upon which McKinney himself relied at trial–that a homosexual advance was key to his violence.

So this ABC News report is–quite simply–crap. If ABC News was going to be party to a criminal defendant’s breach of his promise not to go to the media again with his story, you’d think that they’d at least wait until a defendant came along whose new evidence actually amounted to something.

To this Eric received 37 comments (I’m lucky if I get two).

Then, the follow-up:

Nonsense about penalty enhancements for bias crimes

W.J. Hopwood, a frequent commenter here, had the following to say about hate crimes:

A crime is a crime. It reflects an intent to perform a criminal act for whatever reason. The guy beaten because he wouldn’t give up his wallet is hurt just as much as one beaten for being gay. But what if the victim who wouldn’t give up his wallet was also gay? Should the punishment be doubled? Is [another commenter] saying that punishment for assaulting a robbery victim only for his money should be less severe than for assaulting someone because of the victim’s sexual orientation, or race, or creed, or ethnicity, or gender?

I reproduce this not because I think it’s insightful, but because I know it to be a common–perhaps the most common–argument against criminal penalty enhancements for a perpetrator’s motive of hatred for a crime victim’s group.

Voiced in this way, the objection could not be more simple-minded and wrong. For purposes of punishment, a crime is most definitely not a crime. The fact is that the law already uncontroversially metes out different punishments for the same crime based on the motive of the person who commits it. To get the feel of this, compare these cases:

1. Murder

a. Bill intentionally administers a life-ending drug to his chronically (but not terminally) ill mother to put an end to what he perceives to be her otherwise unremediable suffering.

b. Ted intentionally administers a life-ending drug to his chronically (but not terminally) ill mother to collect his inheritance.

Let’s assume that under a particular state’s laws, both of these acts would constitute second-degree murder. Would anyone maintain that it’s inappropriate for the law to punish Ted more harshly than Bill? Of course not. It would be entirely appropriate to punish Ted more severely for his bad motive (or, looking at it the other way, to mitigate Bill’s punishment for his benign motive).

So it’s perfectly clear that the criminal law quite uncontroversially punishes some offenders more harshly than others because of their motive.

Now consider another pair of cases:

2. Mail Fraud

a. Bill offers malpractice insurance to attorneys, but it’s a scam. He bilks 5 attorneys out of $5000 each.

b. Ted offers long-term care insurance to elderly people afflicted with Parkinson’s Disease, but it’s a scam. He bilks five eighty-five-year-olds out of $5000 each.

Again, would anyone maintain that it’d be wrong for the law to treat Ted more harshly than Bill? Ted has chosen to seek out unusually vulnerable victims. Even if the dollar amount of the loss that Bill and Ted caused is the same, where is the problem with punishing Ted more severely for seeking out vulnerable victims?

So a crime is not a crime. The criminal law treats people more harshly for acting out of motives society deems especially culpable, just as it treats people more harshly for pursuing vulnerable victims. None of this, in the murder and mail fraud contexts, is controversial.

So why should it be any more controversial when the law enhances the punishment of an offender when he seeks out his victim on account of sexual orientation?

Now, one might argue that the motive of making a person suffer for being gay is no more culpable than the motive of making a person suffer for having a wallet with some cash in it. Or one might argue that society has no good reason to see gay people as more vulnerable to violence than any other group. Those are both policy-based objections to bias-motive-based sentencing enhancements. I myself think they’re both wrong. But the point is that that’s all they are: arguments about policy. They’re a far cry from (and, of course, far less rhetorically attractive than) the usual silly arguments one hears about how “a crime is a crime.”

I must admit, Eric’s argument is quite persuasive, but then I’m reminded of Sparkey’s caveat:

“Though he be a gentleman, remember, Eric Muller is also a lawyer.”


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