NEAL CONAN, HOST:
Sixteen members of a conservative Amish group face federal hate crimes charges in Cleveland. They stand accused of violently assaulting and forcibly cutting the beards and hair of members of another Amish group. In a recent piece for Bloomberg View, Harvard Law Professor Noah Feldman argued that this should not be tried as a hate crime, that while we sometimes punish the thought as well as the deed - premeditated murder, for example, gets more time than a spontaneous killing - to classify a dispute between members of the same faith as a hate crime sets a dangerous precedence. So when do we punish the thought as well as the deed? Give us a call, 800-989-8255. Email: email@example.com. You can join the conversation at our website as well. Go to npr.org, click on TALK OF THE NATION. Noah Feldman joins us now from a studio at Harvard. And nice to have you on the program today.
NOAH FELDMAN: It's a pleasure to be with you.
CONAN: And the alleged victims here were attacked because of their religious beliefs. Why is that not a hate crime?
FELDMAN: Under the language of the statute, it's definitely true that if you're attacked because of your religion, that could be defined as a hate crime. And here the people who were attacked were attacked because they didn't adhere to the sect that did the attacking or because they refuse to discipline that sect. The danger of considering it to be a hate crime when members of the same religious group essentially attack each other is that if you're in a very religious community - and it could be Amish, it could be ultra-Orthodox Jewish, it could be really essentially anything, could be Muslim - then many of the activities that members of the community perform are because of religion. And many of the ways they interact with other people are because of those other people's religion.
And by treating those sorts of disputes as hate crimes, we're inviting the federal government into mosques, synagogues, churches, into religious communities, and putting the government in a position of treating even relatively minor disputes - I'm not saying this one was, but even relatively minor disputes - as hate crimes, as federal crimes. So of course the people who did the cutting of the beards should be punished under Ohio law for assault.
CONAN: If they're guilty.
FELDMAN: But that's quite another matter. If they're guilty, which I think it seems quite probable that they are. But it's quite another matter to literally make a federal case out of it and to consider it a hate crime. We want to make sure we don't cheapen the concept.
CONAN: And your piece pointed out something of which I was not aware, that the hate crime legislation was changed after the Matthew Shepard case in Utah - excuse me, in Wyoming. And that was, well, that was to include sexual orientation as one of the categories in which - to be protected. But there was another change in that law.
FELDMAN: There was. Out of the headlines, that same 2009 law took away the requirement of the old federal hate crimes law, which was that the person attacked had to be taking advantage of some government service like going to school or voting. And the reason that was in the original law is that that law was part of the Civil Rights Act of 1968. And the original hate crimes law was designed so that African-Americans would not be intimidated violently out of taking advantage of the civil rights that they had earned for themselves through the civil rights movement.
So in other words, it was called a hate crimes law. But the original version of the law was primarily to avoid people being intimidated out of using a government service. In 2009, that was changed so that now the federal law doesn't require you to be involved in taking advantage of any government service. If you're just walking down the street, as I guess Matthew Shepard was, and you're attacked by another person because of your race, your religion or your sexual orientation, that can be treated as a hate crime under the law.
CONAN: And implicit in that is that intent, your thought, is an additional crime.
FELDMAN: Yes, that's exactly right. The very same action will be punished completely differently based on what the court ascertains was your thought, your motivation, the feelings in your heart when you committed that act. And so that law reflects a judgment that it's especially morally repugnant to attack someone for one of those reasons: race, religion, sexual orientation. And that's a judgment that the society can make. And I think sometimes it's the right judgment for us to make. But we have to be careful not to expand it so far that we treat every act of violence between religious people as a hate crime.
CONAN: And you say it's a judgment that society can make and should in certain circumstances. Some people say, wait a minute. There's a slippery slope. If you allow it any case, then you are inviting cases such as yours and inviting the federal government to come into mosques, synagogues and churches.
FELDMAN: That is a very legitimate concern. I think the minute you have what I would call a pure hate crimes law, one that essentially takes an act that would be - for example, shearing off somebody's beard - a minor crime otherwise and transforms it into a major federal crime, you are open to that possibility. It's true. But there is almost no other way for we, as a complete people of United States, to condemn the kinds of crimes that treat people violently or wrongfully on the basis of features that we consider to be wrong, that we consider to be fundamentally bad features, like attacking somebody on the basis of race, religion or sexual orientation.
FELDMAN: And so the condemnation has, I think, some benefit. And then there are lots of court cases where I think almost everybody would agree that it's appropriate. So if we have somebody, like the man - he's dead, and so he won't be prosecuted. But the man who killed the Sikhs in their Gurdwara in Colorado, that is a classic archetypal hate crime, and I think we would all immediately recognize it as such.
CONAN: So - and again, he's not going to be prosecuted because he's dead. So a hate crime - if he just got prosecuted for eight murders, he would be put away for, well, very probably life. What's the difference?
FELDMAN: You're absolutely right. The practical difference would be very small in that case, and maybe not - wouldn't exist at all. But it would be a way for the society to say - and sometimes laws are useful for this purpose - we collectively condemn this act even more than we condemn murder. We would be saying: This is worse than murdering people at a crowded film theater when I'm watching the latest Batman movie. There's something distinctive about targeting people based on their religion, and we want to express our outrage about it.
CONAN: And then you get to that interreligious dispute, which is clearly the case here with these Amish groups. People feel very strongly about what they might consider heresy or apostasy. And why should that not be included as a hate crime?
FELDMAN: Well, on the surface it would seem perfectly reasonable to include it. After all, if I - I'm not Amish - cut off an Amish person's beard because I didn't like his beliefs, that would be punishable as a hate crime. So why shouldn't the exact same thing happen if it's being done by somebody who was also Amish and also has a beard and just belongs to a different sect of the Amish community? In principle, it would seem, on the surface, that they should be equally bad.
But I think that there's both a difference in terms of the consequences and a difference in terms of the specifics. The difference in terms of the consequences has to do with the way that very religious people, people in deeply comprehensive religious communities, see each other and see the world. They almost never look at another person and see just a person. They always see a person with a certain set of religious beliefs attached.
And that means that any act they commit towards that person will be because of that person's religion. And when that act then has some component of violence to it, including minor violence, suddenly that person would actually be guilty of a hate crime.
So, for example, imagine two gangs of teenage ultra-Orthodox Jews who get into a scuffle with each other. And the reason they don't like each other is that each belongs to a competing sect. That might look to us, on some level, like it's just another scuffle between teenagers. But it would also be a hate crime if defined in these terms, because they see each other as members of those groups because of their religion. And so that would be different from ordinary gang members, let's say, who would see each other as gang members, but not because of their religion.
So, you see, it has to do with the distinctive features of people who belong to these very comprehensive religious communities. The law is designed to protect people like that, but the law could actually end up targeting people like that much more frequently than it targets other people.
CONAN: We're speaking with Noah Feldman, a professor of Constitution and international law at Harvard about when we punish the thought as well as the deed. 800-989-8255. Email us: firstname.lastname@example.org. And let's get Patrick on the line, Patrick with us from Oklahoma City.
PATRICK: Hi. Thanks for having me.
CONAN: Go ahead, please.
PATRICK: We - I'm just trying to, I mean, you kind of touched on this before I got my call answered, but I'm just trying to figure out why we're still worried about hate crimes, as opposed to just crimes, because with the recent decision that you had talked about that they, you know, it doesn't have to be using a public service. It's just anyone in public now. So why concentrate on the hate? Why not just the crime?
FELDMAN: Yeah, that's a great question. Part of the answer is that we do want to engage in some kind of public condemnation. But the other part of the answer is that sometimes, we don't think the law does enough. I mean, clearly, what happened here in Ohio is that the idea of just punishing the beard cutters for the local crime of assault didn't seem sufficient to the federal prosecutors. They wanted to send a greater message that they particularly condemn this act.
And that's the part where I'm saying, you know, take a deep breath. You know, think twice about whether this particular act is the kind of act that we, as a society, wish to condemn in those absolute terms. You know, perhaps it is. Perhaps we think that certain symbols, like beards that are held - worn for religious reasons, are so sacrosanct that they should never be interfered without the federal government stepping in.
But I think the context in which this arose, which was this dispute between the different members of a religious community suggests that, though nasty and certainly repugnant, we are actually intervening. The federal government is now intervening in this dispute and judging on behalf of one side that its actions are right, and on behalf of the other side, that their actions are especially repugnant and count as hate. And I think it's not a perfect fit, in this case.
CONAN: Patrick, thank you. Let's see if we'd go next to Tom, and Tom's on the line with us from Nashville.
TOM: Hello. How are you all doing?
CONAN: Good, thanks.
TOM: Good. I used to agree with Patrick. You know, I used to think we should just concentrate on the crime itself and how it affects the rights of the victim. But then I kind of came to realize that there's one aspect: You can't just discount motive, and that's in deciding how likely is this person to commit the same crime, because - and there you have to consider how reasonable or unreasonable or dangerous their motivations are.
FELDMAN: That's a really interesting idea, Tom. You know, in general, in the criminal law, we do think about people's motives. We think that if you kill someone and its premeditated murder, that's different than killing the exact same person using the exact same gun spontaneously, because it - you just got angry at them in the moment.
TOM: Well, would that be a distinction that...
CONAN: I'm sorry. You were saying, Tom?
TOM: No, I'm sorry. Would that be a distinction of intent rather than motive or - I'm not always clear on...
FELDMAN: Well, I think you're quite right to say that they're closely related. It is a distinction of intent, but motive could help us understand what that intent was. So, you know, the intent of a person is measured by did they plan it in advance. But one way to find out if they planned it in advance is to see if they had a motive and to see what that motive was.
TOM: Oh, yeah
FELDMAN: So the two are interrelated with each other. But you're quite right to say that's about intent. The interesting question, though, that you raised, Tom, is whether a person who commits an act of violence against another person for religious reason is more or less likely to do it again. And I'm not sure that I know the answer. You know, take these folks.
If someone just came up to you and cut your hair off or cut your beard off for no particular reason, you might think that they are very likely to do it again. Maybe they're hooligans. These folks did it for a particular reason under particular circumstances. So does that mean they're more likely to do it again than hooligans because they have a religious motive, or less likely to do it again because it has to arise under very certain circumstances? I'm not sure I know the answer.
CONAN: All right, here's another one. And Tom, thank you very much for the phone call. In the case of premeditated as opposed to a murder where I just snapped, why does intent - why does the thought make a difference? It's all the same to the victim.
FELDMAN: It is all the same to the victim, and it's a great puzzle as to why we don't treat all of these things the same. But the answer has to be that we as a society are making a moral judgment when we punish a criminal. And we think that it's morally worse to kill somebody when you plan to do it in advance than we think it is to just snap. We've made a judgment about that. A possible further issue is that we may think that by punishing people more forcefully, we can prevent you from planning a murder. Maybe, just maybe, we think it's harder to prevent you by advance punishment from snapping and committing murder.
That might be one reason why we punish that less strongly. But I think the more powerful explanation is that we're making a moral judgment, and our criminal law does that all the time. In that context, we're accustomed to it. The old common law even spoke of the depraved heart of the defendant, of the person accused, and that captures something about the moral judgment.
CONAN: Noah Feldman, thanks very much.
FELDMAN: Thank you for having me.
CONAN: Noah Feldman, professor of Harvard Law School, and he wrote a piece for The New York Times magazine and the Bloomberg View. He's a contributing writer for those two publications. You're listening to TALK OF THE NATION, from NPR News. Transcript provided by NPR, Copyright NPR.