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U.S. Hate Crime Law:
The New Face of Soviet Criminal Code 59-7
An Analysis of Legal, Psychological and Ideological Foundations

By Brian Hammer
On October 7, 1989, a group of young black men and boys in Kenosha, Wisconsin, U.S.A., were discussing the film Mississippi Burning. Of particular interest to them was the scene in which a European-American man beats a young African-American boy, who was praying. After moving outside, one of the group, Todd Mitchell, asked the others, “Do you all feel hyped up to move on some white people?" A young European-American boy soon walked in their direction, and Mitchell incited his group to attack the boy with words like, “There goes a white boy; go get him.” The group beat the boy severely and stole his sneakers. He remained in a coma for four days.1 This case was brought to trial in Wisconsin and reached the U.S. Supreme Court in 1993.

At issue was a Wisconsin law that added extra punishment for crimes committed when the victim is intentionally chosen because of his or her protected status. The statute requires that extra penalties apply whenever the perpetrator “[i]ntentionally selects the person against whom the crime . . . is committed . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person. . .”. 2

Under Wisconsin law, a victim, like the little boy in the Mitchell case, need not have done anything wrong, but is attacked or otherwise victimized simply because of belonging to a certain social or religious group that is protected under American law. In other words, a person is victimized because he or she is European-American, African-American, Jewish-American, a member of a religious organization, etc. Identity becomes the target of crime, not the usual objectives of owning others‘ property (theft), destroying others’ property (vandalism), taking life (murder), and the like.

Wisconsin has chosen to add extra penalties to crimes motivated by selection of identity. In Mitchell’s case, the normal punishment allowed by law for aggravated battery is two years’ imprisonment. Under the penalty enhancement provision, he could have received seven years’ in prison — three-and-a-half times the normal punishment . As it was, the court sentenced him to four years, twice the normal punishment.

Choosing someone or something simply because of who they are or who it belongs to appears to be one of the most irrational and bigoted kinds of crime there is. The victim may have done nothing wrong, like the boy in the Mitchell case. The object of the extra penalties has all the appearance of punishing what can only be crimes against innocence, motivated by intense dislike of the social group to which the victim belongs; thus the label “hate crimes”.

Numerous other examples of hate crimes have sprouted up in the U.S. Among them: Two European-American males dragged James Byrd, an African-American, by rope from the end of a vehicle in Texas, as a result of which Byrd died. In 1998 two young European-American males tied Mathew Shepard, a homosexual, to a fence in Wyoming, beat him, and left him to die, which he did. Jewish community centers have been vandalized. And the list goes on. The victims in these cases committed no criminal wrong but were attacked in various ways nevertheless. It is as if they suffered simply for being. In this light it is no wonder that most states in the U.S. have enacted laws ordaining extra penalties for crimes committed on the basis of selection of identity and hostility towards another social group. They appear to protect our common humanity.

What could possibly be wrong with loading extra punishment onto those who commit hate crimes?

For some people, there is much that is wrong with these laws.

Matthew Brooks and Seth Leibsohn of the Jewish Policy Center in Washington, D.C., have attacked this kind of legislation as setting up a preferred class of citizen — victims who get “special treatment” by virtue of extra punishment for crimes against them alone. Special treatment contradicts the notion of equal treatment under law at the root of American concepts of law.3

Jared Taylor criticizes the federal government for “inventing new crimes and taking over police functions the Constitution reserves for the states”. Hate crimes are not yet federal law. Some senators did sneak hate crime legislation into a U.S. Senate defense appropriations bill, but so far the House of Representatives has refused to go along, and the Senate rejected another attempt at passage in 2002.4 In the U.S., law-making is much more decentralized than in many other countries, but this power has been eroded in favor of control by Washington in many respects. Federal hate crime legislation would erode it further.

Taylor also takes hate crime laws to task because they completely ignore incidents of “ordinary” interracial crime. Ordinary interracial crime does not involve any expressed motive against another community, but the victims belong to social groups different from that of the criminal nevertheless. The incidence of crime of this type is far greater than crimes involving the open expression of community antagonism.

In 1998, the police reported 9,235 offenses "motivated in whole or in part by bias”. Of these, only 2,117 of these were actual violence. In 1994, to compare, Americans reported 783,388 “completed acts of interracial violence”.5

Mr. Taylor’s point is that “If Congress wants to punish crimes that make race relations worse,” it is avoiding the main locus of such crimes. Ordinary crimes of this type are mute when it comes to the vocalization of antagonism, but inflame inter-community antagonism nevertheless.6

David Horowitz and Richard Poe of FrontPageMagazine.com highlight the potential for the unequal application of hate crimes law.

“In the summer of 1997, three white Michigan teenagers jumped a train, looking for fun and adventure. They found tragedy instead. When the threesome disembarked in a strange neighborhood, they found themselves face to face with a gang of armed black hooligans.

“The gang killed fourteen-year-old Michael Carter on the spot. Fifteen-year-old Dustin Kaiser got a bullet in the head, yet somehow survived.

“The third victim, a fourteen-year-old girl, suffered the worst fate. She was pistol-whipped and forced to [have sex with] the gang. Afterwards, they shot her in the face. While the atrocity received some attention from local media, it did not make the national news. The six perpetrators were later captured, but were not charged with any hate crime.”7

Though intelligent black commentators such as Earl Ofari Hutchinson and Clarence Page have urged fellow blacks to support the fair application of hate crimes law to persons of all social groups, “in which black people are charged with hate crimes as readily as whites”,8 Poe demands the rejection of this kind of law altogether, as has Horowitz.

It is not only that the law can be applied unevenly and unjustly, so as to target some social groups and not others. To the extent this is true, it is equal justice under law on paper only, not in reality. The problem is that a prosecutor or journalist can make anybody look bad. “Whoever you are, given enough time and access to information about your private life, I guarantee that I can make you look like a racist, if I choose,” writes Poe.9 It is a legitimate question who is without what are called “bias”, “prejudice”, or “bigotry”, and the like. Ultimately, hate crime laws may punish imperfections of human psychology.

Others like the New York Christian Coalition reject the proposed federal hate crimes law because it makes some lives worth more than others:

“If a young 12 year old girl is raped and murdered, and a homosexual is murdered in a city park by the same man who happens to call him a fag before he murders him, the murder of the homosexual [would be] a federal offense with a stiffer punishment than the murder of the 12 year old girl which remains ‘just’ a rape and murder.”10

Many parents would be interested to know that the lives and dignity of their daughters have less value than the lives of homosexuals under laws that give more punishment for specific crimes against homosexuals than for crimes against girls.

Similarly, Scott Holleran, commenting in the Miami Herald on the murder of Matthew Shepard and homosexual demands to be protected by hate crime legislation, asks, “Would the crimes of Jeffrey Dahmer and John Wayne Gacy, both gay serial killers, be worse had they been committed because they hated heterosexuals, or, more accurately, because they hated themselves for failing to be heterosexual?” In other words, motivation may not matter when the deeds themselves are compared. He calls hate crime laws wrong because they are “arbitrary”.11

Some people may try to justify these laws because they are said to protect the more “vulnerable” sections of the population. The scenarios drawn up by the NYCC exposes this reasoning for what it is — a pretense — since if there is anyone vulnerable in society it is girls and other children. Girls are unable to organize themselves well, lack large sources of their own funding, have no independent legislative impact, are physically far weaker than homosexuals, and are for the most part dependent on their parents. Nevertheless, hate crime legislation suggests that children are less vulnerable, and inverts the degree of protection due them under rational law to the extent that homosexuals receive special legislative grace.

These are only some of the criticisms that have been levelled against so-called “hate crime” legislation, criticisms that originate from a variety of groups in society, including African-Americans, Jews and Christians. All of the critics above reject hate crime legislation on more than the grounds attributed to them here. We will return to one additional criticism in particular later in this article. What appears to be law that protects our common humanity is actually law that creates political crimes.


The Supreme Court Falls Short
The U.S. Supreme Court has upheld hate crime statutes in the landmark case of Wisconsin v. Mitchell (1993). The Court provided several reasons favoring this decision.

First, it is a long tradition in American law to sentence defendants according to motive. Good motives can a receive minimum sentence, and bad motives can receive high sentences, even though the crime itself is the same.12 As one example of a motive deserving stiffer punishment, the Court mentions murder for monetary gain. Punishing more venal motives with stiffer penalties does have a certain merit. As will be shown below, however, this logic puts theft on the same plane as free thought, an argument that lacks obvious merit.

Second, the Court states that “the primary responsibility for fixing criminal penalties lies with the [state] legislature”.13 In other words, states have the right to penalize “bias-motivated offenses” more harshly than other offenses. This is one of the Court’s weaker arguments, however, since what is at issue in Mitchell is whether such offenses can receive heavier sentences in the first place in light of the First Amendment‘s protection of speech and thought. It begs the question.

Third, in a somewhat confusing train of thought, the Court upholds the right of a state to add penalties when a defendant’s motive is discriminatory.14 According to the Court, this does not undermine the First Amendment’s protection of free speech. Free speech, even that called biased or bigoted, is still protected by the Court (see, for example, R.A.V. v. St. Paul, 505 U.S. 377). However, conduct unprotected by the First Amendment, such as violence, is not. On its surface, Wisconsin’s hate crime statute does not aim at punishing free speech or any motive that does not lead to crime, but punishes discrimination in the committing of crime, or so the argument goes. As will be shown below, however, this statute does punish thought and speech with added severity.

Fourth, the Court cites legal scholar Blackstone on the right of governments to punish more heavily crimes that are perceived to “inflict greater individual and societal harm”15: “[I]t is but reasonable that, among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness.” The Court supports the claims of those supporting the Wisconsin law that “bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest”.

To some extent this argument merely reiterates the second argument, which upholds a state’s right to punish whom it wants. As mentioned, this begs the question whether this right should extend to hate crime legislation. As Brooks, Leibsohn and others have pointed out, this argument also fails to address the question why hate crime should be punished more heavily than other crimes — in other words, whether the state should have the right to discriminate amongst those whom it punishes, punishing some crimes more heavily than others based only on the victim’s membership in certain social groups.

Society does have an interest in preventing and punishing arbitrary violence, but this line of reasoning fails to establish empirical proof that hate crimes are “more likely” than other kinds of crime to harm individuals and society. To establish this proof, the Court would have had to compare the effects of all kinds of crime, and does cite claims that allegedly “prove” this. Following the arguments laid out by the New York Christian Coalition, Scott Holleran, and others not mentioned here, it will be shown below, however, that this proof is more like a house built on sand because of its empirical invalidity.

Fifth, the Court accepts the argument that Wisconsin’s statute will have no “chilling effect” on free speech.16 Lawyers for the defendants had claimed that due to this statute, people might be cowed into suppressing what they want to say out of fear of the heavier punishment they would receive under the statute if they ever committed a crime it covers. The Court rejected this claim by stating that it was “too speculative a hypothesis”. The Court also reiterated judicial approval of the “use of speech to establish the elements of a crime or to prove motive or intent”. Motive is an element of proof in murder trials, so can be in other forms of crime also. Once again, however, this leaves unanswered the question whether the “bias” or “hate” in hate crimes should receive extra punishment, as prescribed by Wisconsin and many other states.

Finally, the Court claimed that the Mitchell case is otherwise just one more in a long line of cases in which it has upheld penalties against discrimination.17 The Court referred to Title VII of the Civil Rights Act of 1964, which “makes it unlawful for an employer to discriminate against an employee ‘because of such individual's race, color, religion, sex, or national origin’”. The references to anti-discrimination law appear to sidestep one of the main issues in Mitchell, however, which is why certain crimes should receive additional punishment and not others, an issue raised by several critics.

The purpose of civil rights law was to establish equality under law, with special reference to certain “protected classes”. Somehow, because of the extra penalties for crimes against them, “protected” classes appear to have been transformed into “privileged” classes, and equality become inequality. In other words, crimes against certain people will be punished harder than crimes against other people. This appears to be more of an unconstitutional principle than a constitutional one, and is thus of questionable legality. Where there are the legally privileged, there are the legally subordinated.


The Heinousness of Crimes
It should be clear from reviewing the discussion of Wisconsin v. Mitchell that the Supreme Court thinks motives like bias and hate can receive extra punishment when they lead to crime. It should also be clear that some of the Court’s reasoning is questionable. Nevertheless, this reasoning may still seem sound enough even though it may not be perfectly convincing. The analysis here thus far has been only cursory. To probe the depths of the Court’s reasoning to its roots, we have to refer to a case that serves as a backdrop for Mitchell. That case is Barclay v. Florida, decided in 1983.18 By understanding Barclay, we can better understand Mitchell.

The four defendants in Barclay were part of a group called the Black Liberation Army. This group had the purpose to “indiscriminately kill white persons and to start a revolution and a racial war“.19 On June 17, 1974, the defendants were driving around in the Jacksonville, Florida, area, looking for a white person to kill.

"Eventually the five men headed for Jacksonville Beach where they picked up a hitch hiker, eighteen year old Stephen Anthony Orlando. Against his will and over his protest they drove him to an isolated trash dump, ordered him out of the car, threw him down and Barclay repeatedly stabbed him with a knife. Dougan then put his foot on Orlando's head and shot him twice — once in the cheek and once in the ear — killing him instantly.”20

The group later sent tapes justifying a race war to the victim's mother and to radio and television stations. The judge in the case decided that the explicit racial intent in the crime was one of the factors warranting a heavier sentence — the death penalty.

In justifying his decision, the judge recalled his World War II experiences.

“I, like so many American Combat Infantry Soldiers, walked the battlefields of Europe and saw the thousands of ... dead American and German soldiers and I witnessed the concentration camps where innocent civilians and children were murdered in a war of racial and religious extermination.

"To attempt to initiate such a race war in this country is too horrible to contemplate for both our black and white citizens. Such an attempt must be dealt with by just and swift legal process and when justified by a Jury verdict of guilty — then to terminate and remove permanently from society those who would choose to initiate this diabolical course.”21

Clearly, society has a strong interest in preventing wars of racial, religious, or other forms of social extermination. They are among the most heinous acts imaginable. As such, the judge would seem to be correct in superimposing extra punishment for the defendants’ motive.

Seen objectively, however, stripped of motive, the issue takes on other parameters. Murder differs from mass murder as well as serial murder in extent, though all are repulsive. The finality of death is present in murder, serial murder, mass murder, and social extermination. Therefore, some forms of death must be considered more heinous than others, and sound reasons to support these differentiations. Numbers killed is one distinction.

The differences among the various forms of murder, including social extermination, become less clear, however, when the method of killing is added as a consideration. Then, the drawn-out torture of one or several murder victims can appear more heinous than the quick murder of a single person on racial or similar grounds. The racially-motivated murder of Orlando by Barclay and his companions, for example, was not abrupt, but it could have been much worse, lasting for days.

Thus, in comparing classes of murder — murder, serial murder, mass murder, and social extermination — three parameters of heinousness arise. The method of killing is relevant, not only the numbers killed or motive. This is especially true when many people are killed in barbaric serial murders and only one or so are killed in more or less ordinary ways on extermination grounds, like in the Barclay case. This is of course less relevant when the number of extermination murders is high. Using three parameters instead of two does not downplay the heinousness of genocide, but does not downplay the significance of the form of violence either.

It also misrepresents the case to suggest that only mass deaths based on protected categories are the bane of civilized existence. Stalin, Beria, Ezhov, Dzerzhinsky and the gang in the Soviet Union exterminated at least 500,000 people, and up to nearly 20,000,000 died as a result of imprisonment, collectivization, and forced famine following communist party policy. The government in mainland China exterminated 6-10,000,000 people, another 20 million “counterrevolutionaries” died in the Chinese prison system, and another 20 to 43 million died from famine caused by the criminal negligence of the Great Leap Forward. Pol Pot exterminated 1-2,000,000 people in Cambodia.22 None of these deaths was in the protected categories of hate crime law. All of them were committed by communist parties. In light of these figures it is also difficult to suggest that hate crimes are the worst sort of crime; perhaps we should be a little more worried about the intentions of parties promoting government control of society.

The judge in Barclay based his decision on personal experiences. As the Supreme Court noted, this is not wrong, and experience is needed to give weight to judicial judgment. What is wrong, however, is in assuming that experience constitutes sufficient grounds for generalization. Both the judge in Barclay and the Supreme Court appear to have made this rudimentary error of logic. Considering that judges, and especially the Supreme Court, are supposed to have the most developed sense of judgment in the land, this logical defectiveness is disconcerting.

Thurgood Marshall, the first African-American on the U.S. Supreme Court, dissented from the Court’s decision in Barclay and thus in the rationale leading to Mitchell and the Court’s support for hate crime legislation.23

Let us assume that instead of surveying the heaps and rows of corpses produced by orders of extermination in World War II, the judge had another experience. Let us assume that in addition to viewing these corpses, he had met the beaten and tearful survivors of the thousands of rapes that occur each year in the U.S., or seen stacks of female corpses murdered in the course of rape, all in a short period of time and concentrated in one place. Forcible rapes of females numbered 90,186 in the year 2000 alone.24 What would his opinion about the special heinousness of racial and similar crimes have been then? Would the judge have withheld the judgment of heinousness from rape with this experience or not? What about gang warfare, which also goes beyond individual crime and harms individuals and local society? What about plain and simple interracial crime, which in the U.S. outnumbers hate crime by multiples in the hundreds?

None of this is ever discussed by the judge in Barclay or the justices of the Supreme Court in Mitchell. Nor, as a consequence, is any rationale given to apply extra penalties to hate crimes but not to rape or other crimes that, when added up and taken en masse, might seem heinous also. They would also show that element of repetition that characterizes racial and religious war. Seen in context, heinousness becomes more of a relative term, not a term that is possessed with an unrelinquishable grip by some crimes and not others.

The Barclay judge’s experience was relevant, but limited, too limited to form the basis for a truly sound decision. The calculus giving vocalized inter-community criminal intent a monopoly on heinousness leaves too many questions unanswered to be thoroughly convincing. This is not to diminish the horror of the killings that this judge and others saw the results of, but to elevate non-protected victims from the value of zero assigned to them by hate crime legislation and the Supreme Court.

The crux of the issue in Mitchell, however, more specifically concerned the impact of Wisconsin’s hate crime statute on freedom of thought and speech, a freedom guaranteed by the First Amendment of the U.S. Constitution. We have seen that the Supreme Court made a distinction between the ordinary exercise of this freedom and its involvement in crime. The Court’s justification is that though thought and speech should be protected against penalization, they should lose their protection when elements of crime. In other words, freedom of thought and speech are conditional rights. Bias and hate are distinctly not crimes, according to the Court, unless they serve as motives for crimes. More specifically, bias and hate deserve extra punishment when they serve as motives in crime.

Analysis of this argument will show that the Court, and states like Wisconsin, are undermining the First Amendment, and depriving Americans of freedom, in spite of their claims to the contrary.


One Plus One Equals Two: A Proof
Legislation against hate or bias crimes can be interpreted mathematically. In mathematics there are positive numbers and negative numbers. The numbers 1, 2, 3, 4, etc., are positive numbers. The numbers -1, -2, -3, -4, etc., are negative numbers. When two positive numbers are added together, the result is always another positive number. For example, 1 + 1 = 2. When two negative numbers are added, the result is always another negative number. For example, -1 + -1 = -2.

Let us assign the value of -1 to a crime, since it is a negative activity harmful to others. Let us also assume that for anything to be punished, its value must always be negative, and that only criminal criteria are negative. Finally, let us assume that a number is what it is according to the principle of identity and cannot change its value. In other words, -1 cannot equal +1, and +1 cannot equal -1.

In hate or bias crimes, the act of vandalism, assault, or murder, etc., is a negative activity, so should receive the value of -1. The subjective state of what is called hate or bias, etc., is ordinarily protected by the Constitution under the right of freedom of thought, as is freedom of speech, writing, and the like. Freedom of thought and speech are not only not crimes, they are positive values. Therefore, anything coming under this category should receive a value of at least +1. For the sake of argument, however, let us also assign the value of 0 to bias and hate. They are not, as held by the Supreme Court and many others, by themselves crimes, but to some people they are not positive values. So it is conceivable to assign these mental states a value of 0. They are not crimes, however, so we cannot assign them a value of -1.

Hate crime legislation contains two components to consider when determining punishment. The first is the objective component, the act itself, like vandalism or assault. The mathematical balance at this point is -1. The second component is the subjective component, hate or bias. As we have seen, this component is by itself protected by the First Amendment and is not a crime, and thus should receive a value of +1 or 0, and cannot receive a value of -1. Thus, the punishment meted out in the course of hate crimes using rational mathematics should have a value of at most -1, or the negative experience of one punishment.

Under hate crime legislation, however, the subjective component merits additional punishment. The result must be at least -2, the addition of two negative components. This means that what actually had a positive value like 1 or a neutral value like 0 must actually have a negative value of -1, for without a negative value it would not be a crime meriting extra punishment, creating a value of -2 when added to the objective crime.
The only alternative is to venture into the unreal and assume that what is not a crime is a crime. To use the numeration system, +1, the value of freedom of speech and thought, must equal -1, the value of a crime; or, if we assume that the hate in hate crime has a value of 0, that 0 = -1. To make either +1 or 0 equal -1, however, brings us into the realm of Orwell’s 1984 and doublespeak, not to mention insanity. It is like saying 2+2=5 or 3=6. As in 1984, hate crime law does punish thought and its expression, and claims that it does not. The First Amendment is now compromised by another doctrine.

We can conclude from this mathematical analysis that the Supreme Court and states like Wisconsin have turned certain subjective conditions like hate and bias into crimes. This is the only way to explain how something that is not a crime can merit punishment, for that is what the extra penalty attached to so-called hate crimes is.

The analogy by the Supreme Court of hate crime to murder for gain, used as an argument in Mitchell, is thus irrelevant. The theft in murder for gain is already a crime even without murder, whereas free speech outside of hate crime is not. Applying extra penalties to hate crimes based on a superficial similarity to murder for gain is unfounded.

Likewise, simply because First Amendment guarantees lose their protective power when thought and speech serve as motives in crime does not justify extra penalties for the free exercise of opinion. It should only allow additional evidence of intent. The Court has not only removed the protection of the First Amendment in criminal matters, rightly so, they have taken a large step backward and allowed punishment of people for the exercise of this freedom as well. They have turned the First Amendment a full 180 degrees such that it can now be directed against the citizens it is intended to protect.

Finally, as noted by Taylor, if this kind of law were really intended to lessen inter-community disturbance, it would have been directed against ordinary inter-community crime, which is far greater in number than hate and bias crime. Its intent is thus more like carefully veiled political persecution than to increase peace and safety.

Thought crimes are now a reality in America. Hate crime law does not punish thought and speech per se or at random — It waits for selected opportunities to do so. The correct understanding is not that hate and bias are not crimes, but that they are crimes that are not punished until turned into deeds — criminal liabilities, or crimes in embryo. This law does not handcuff thought and speech directly; it merely displays the handcuffs to those who think and speak in certain ways. Like a mafia don directing his organization, a few words can be enough.


The Genesis of a Delusion
Having appeared in American state legislatures, it can seem like hate crime laws are a solely American product, born and bred in American soil, evolving naturally out of American culture. A historical survey, however, reveals that hate crime law has its genesis not in Madison, Wisconsin, or any other state capital, but in Josif Stalin’s Soviet Union.

Wisconsin statute 939.645 reads as follows:

“The penalties for the underlying crime are increased” if a person

(a) Commits a crime specified under state law and

"(b) Intentionally selects the person against whom the crime ... is committed or selects the property which is damaged or otherwise affected by the crime ... because of the race, religion, color, ... disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property.”25

The statute provides extra penalties for crimes committed with “discriminatory intent”. As shown, the discriminatory intent, or “hate”, itself is also a crime of sorts, though unpunished, in spite of claims to the contrary. This is important for understanding the link of this kind of legislation to the law of the former Soviet Union.

Article 59-7 of the 1934 Criminal Code of the Russian Soviet Federated Socialist Republic reads as follows:

“Propaganda or agitation, directed toward arousing national or religious enmity or discord, or likewise the dissemination or preparation and storage of literature of the same character, shall be punishable by -- deprivation of freedom for a term up to two years.

“The same activity in time of war, or during mass disorders shall be punishable by -- deprivation of freedom for a term not less than two years, with confiscation of all or part of property, with increase, under especially aggravated circumstances, up to the supreme measure of social defense -- shooting, with confiscation of property.”26, 27

A number of things can be considered when comparing criminal statutes for commonality. One is whether they contain a common purpose. A second is common language. A third is degree of punishment. A fourth is common source or authorship.

When comparing the Wisconsin statute to the Soviet code, several things are clear. First, Soviet code 59-7 targets almost the same social groups or communities that American state statutes do — “national or religious” communities. “National origin” and “religion” are also specifically mentioned in the Wisconsin statute, as is race, which is often tightly bound up with national origins. Others communities or social groups can be, and have been, included in the Wisconsin statute by extrapolation.

Second, freedom of opinion, if it came in the form of propaganda promoting national or religious “enmity” — i.e., “hate” — was against Soviet law and punishable. The word “enmity” used in Soviet law is so close to the word “hate” used to describe U.S. laws of this type that the two are for all practical purposes identical. American hate crime codes do not punish opinions per se; the Soviet code does. As shown, however, certain classes of opinion are criminal in an indicative sense because they create liabilities that can later be punished.

Third, the Soviet code imposes extra penalties when the same activity — let us say “hate speech” or spreading “hate literature” — occurs during times of unrest, either war or mass disorder. Under Soviet law, what received up to two years’ punishment will receive at least two years’ punishment, if not death, if accompanied by enmity towards certain communities.

War and mass disorder are absent as a necessary condition under American hate crime codes. They are, however, identical in spirit with the disorder caused by individuals, small groups, or small organizations responsible for ordinary crimes like vandalism and assault specified in American hate crime codes. They cause unrest or harm like war and mass disorder, only on a small scale. More specifically, a primary justification of hate crime codes is the disturbing effect of these crimes on society. As mentioned, propagators of this law claim that “bias-motivated crimes are more likely to ... incite community unrest”.28 Like American hate crime codes, the Soviet criminal code imposes extra penalties when “hate” against protected groups is mixed in with socially disruptive activity. There is a difference, but it is mainly a matter of degree.

The extra punishment extends even to use of the death penalty. Both the Supreme Court in Mitchell and Barclay and the Russian Soviet code approved use of increased penalties like capital punishment when racial animus, a subcategory of the bias and hate doctrine, plays a role in serious anti-social action, though the Court limited its approval to use of capital punishment for animus in murder cases.

In terms of content specifying certain communities, in terms of creating criminal liabilities for subjective attitudes, and in terms of imposing extra penalties when crimes are committed on the basis of antagonism toward certain communities, Wisconsin criminal statute 939.645 is an American version of Russian Soviet criminal code 59-7. The intent and parameters of the Wisconsin law are so similar they could almost be copied from the Soviet constitution.

Like all similar state statutes and the proposed federal statute, hate crime legislation represents the Stalinization of American law. It is not the complete Stalinization of American law, but one stone in its foundation.

One element that does not seem to be shared between Wisconsin and Soviet law is that of authorship. The Soviet Union disappeared in 1991. It does not control the U.S. government or the government of Wisconsin, and so cannot be the author of the Wisconsin law. Soviet criminal code 59-7 was published in 1934, the Wisconsin code in 1989-1990.

Nevertheless, striking similarities — to a large extent identity — characterize these two codes. The issue of common origin must therefore be revised. Rather than search for identical persons behind each code, it can be reformulated as the issue of a common intellectual framework. Because there is so much that is shared between these two codes, the common origin need not be found in the same persons, but in a common ideology. Whereas persons can be refused visas and die in time, ideologies can cross borders and survive the tests of time. Ideology is the fourth factor of commonality, though in this analysis it is proven by the three other elements of commonality rather than independently. Nor need it be proven, since the other elements suffice. Because of so much in common between the Soviet and Wisconsin and other state codes, it is evident, therefore, that Stalinism is not completely dead but has rather set up operations in the U.S.


Prout on Hate Crimes
Shrii Prabhat Rainjan Sarkar, architect of the Progressive Utilization Theory (Prout), did not stigmatize hate completely, however. For one thing, Prout is based in Tantric spirituality, which acknowledges the existence of all emotional tendencies in the human psyche. The human psyche contains opposites, including like and dislike, and is not unidimensional. Though Tantra advocates control of psychological tendencies and the supremacy of love, it does not particularly advocate suppression or demonization, since, in the opinion of this author, that would be to suppress or demonize a part of the human self. To demonize hate, dislike or anger, etc. , or to hate hate, dislike dislike, or be angry at anger, is to create a kind of self-hatred, self-dislike, and anger at oneself. Since these are dynamic tendencies, directing them against the self can be destructive if inappropriately conceived.

This concept is indirectly reiterated in Jean-Paul Sartre’s existentialist philosophy, in which he tried to describe essential characteristics of human existence and their nucleus in consciousness. Sartre described the structure of what he called “bad faith” — when a person tries to hide the truth from oneself.29 This may manifest as emotional dishonesty, or lying about what one is feeling and suppressing those feelings.

When the dishonest consciousness is present in many people, it is reasonable to suggest that bad faith has begun to infect a society at its roots. Suppression of emotion through legal demonization, like that evident in hate crime legislation, can easily disseminate bad faith on a social level. A fear or guilt complex is injected into people as they become afraid to recognize what they feel, as well as think, knowing they could be punished for certain consequences.

Sartre accurately described bad faith as a failure of the self in maintaining personal integrity. His analysis was incomplete, however. Shrii Sarkar went much farther, and in his philosophy of Neo-Humanism described the use of such complexes (by the Other, so to speak) as tools of exploitation. As shown following, he added a profound socio-economic dimension to the individual manifestation of bad faith.

Secondly, Shrii Sarkar asserted that when there is injustice, hate is legitimate: “People whom I hate today as exploiters may deserve that hate”.30 Thus, what is the question of an illegitimate subjective state or thought crime in hate crime legislation is a question of whether there is objective exploitation in Prout. In other words, hate may be only the emotional component of a rebellion against injustice. The same can be said for dislike, anger, disagreement and all other subjective conditions that can fall in this category of penalized thoughts and emotions. This is not a rejection of the goal of love and affection in society, but an unfortunate, necessary modification. It is a recognition that the real fault may lie not with those who “hate”, but with those causing this condition.

Exploitation is not a topic for polite conversation, but then again, exploitation is not a polite activity. We can define exploitation as the systematic subjugation of members of the same or another cultural community for the sake of financial gain at the expense of the prosperity or progress of the subjugated community. Put simply, exploiters accumulate the wealth belonging at least in part to others. They violate freedom and fairness, but in different ways than Stalinism. To the middle class person, it may seem exotic to consider that exploitation may exist in the U.S., where a free market reigns. Let us hope that it does not exist, but let us not naively assume it either. This is irresponsible and potentially self-defeating. Facts will be the determinants, but if the facts warrant, people will have to decide for themselves if they wish to be willing victims.

Moreover, it is a Marxist-Leninist dogma that exploitation and injustice occur only on a class basis, and cannot occur on an inter-community basis. Precedent for inter-community exploitation has already been established by slavery and colonialism, and need not be limited to those forms. It is this kind of exploitation and injustice that is probably of more relevance in some hate crime issues. Preaching tolerance and sharing the love will not stop it if it does exist, since people are free to ignore moral maxims.

If there is inter-community exploitation, analysis might show that key, powerful, if not wealthy members of one community are directing it with support from other members of their community, not that the entire community are willing and knowing participants. At the same time, sentiments and dogmas in one community can unwittingly support exploitation of other communities.

Shrii Sarkar has described this social sentiment as one that “promotes the interest of one’s own society at the expense of other societies”.31 It can include economic and cultural imperialism (even within nations), job capturing and political self-promotion, but is not limited to those. Nor is it defined as limited to the wealthy, though in the modern age it certainly could be led by them, and can thus include intellectuals, administrators, working class people, and the poorest of the poor. The same can proceed along inter-ethnic lines, leading to inter-community conflict, if not the subjugation of weaker groups by more dominant groups. A community may have been taught that they have a right, for example, to prosper at the expense of other communities. Community leaders, by enforcing opinions, can simply manipulate other members of their community to go along with their program as well.

Such social sentiments can motivate communities in spite of and along with the individualist ideas of classical liberals and libertarians, which are often at odds with how social dynamics function in reality.

Nor need social sentiments always result in a majority taking advantage of minorities. The normal reaction is to think that because of their size, majorities must be the exploiters of minorities when exploitation or oppression occur. Slavery is typically one example of this. The colonialism of British entrepreneurs was always the opposite, however — a minority within many countries exploiting much larger majorities. Social sentiments operating along more modern, non-colonial lines may also find minorities in charge in various ways. Small is not always beautiful, and once again only the facts will tell.

As a consequence of exploitation, or injustice, the legal system and other institutions used to sustain them can also become the target of hatred, as can proto-Stalinist regimes.

Since hate and bias in the Prout view may be caused by exploitation and injustice, Prout theory diverges from hate crime legislation on a fundamental point. This law aims at punishing subjective states. Under this law, citizens of India who attacked members of the British Raj would be guilty of hate crimes, as would indigenous peoples (native Americans) who attacked English, Spanish and Portuguese conquerors in the Western hemisphere taking their lands and gold, as would slaves who rose up against their owners, as would Tibetans who resist Chinese occupation. European communities who have been oppressed and revolted, such as the Irish against the English and perhaps the Bretons against the French, would also be guilty.

Prout, in turn, aims at removing the exploitation and injustice that can cause these subjective states. Its orientation is objective.

“If we remove exploitation from society there will be neither exploiters nor exploiters. The fundamental disease is exploitation, and once it is removed, there will be no further demarcation on that basis.... Consequently, the struggle between the exploiters and the exploited will come to an end. Human beings will realise the supreme truth that all of humanity is bound together by common ties of fraternity.”32

The shift involved in this reorientation is dramatic. Rather than penalize people for what they think, feel and believe, it allows consideration of whether there are elements and activities in society that deserve certain emotional reactions. It is not the purpose of this analysis to determine what specific acts or patterns of exploitation are causing people to experience these emotional reactions. It is hopefully clear, however, that Prout does not support the dogma that all crimes of emotion are due to an immoral, punishable consciousness. This may be true in some cases. In other cases, objective factors of exploitation may be the original cause of the emotion. Expecting, and even requiring, people not to undergo emotional reactions when they suffer injustice is unnatural. Those who preach love and tolerance in these circumstances are little different from the clerics of the past who counseled the poor and outcast that they were ordained to live in such a state, that this was the natural social order, and that they were sinners for questioning it. Contrary to the high priests of hate crime concepts and the doctrine of tolerance, it is not a criminal liability to speak up against exploitation.

Aside from personal experience, only study and analyzing objective factors involved in economics, culture, politics, etc., can determine whether the hate, anger, and other unhappy emotions that can lead to hate crimes are reactions to exploitation or are something else. Objective analysis is also needed to overcome the fixation on subjective states cultivated by hate and bias crime laws and Stalinist propaganda. Wise people may know their motives, but focussing all attention on subjective states lends itself to gullibility and exploitation by others.

If people do react, legally or otherwise, against that exploitation, then it cannot be said that their thoughts, beliefs and emotions deserve extra punishment or criminal liability. In Prout law they would not; peoples have a right to defend themselves. Rather, laws, institutions, and the economic system would be changed to eliminate exploitation at the root of the social distress. Peace yes, but not at any price. In reality, few people follow a Love All Thy Neighbors All the Time maxim because they know at some point it is unsustainable and irrational. A rationalization for bias and hate crime legislation — that it helps remove fear and preserve social peace — would be believable were it not for the possibility of exploitation and that so many other peace-killing factors contribute to much greater fear, including ordinary crime.

Equally important, true removal of hate and anger from society, as well as perhaps most hate crimes, will not occur until objective conditions of exploitation are removed first. In fact it is these conditions that stand in the way of universal humanism. The legal stranglehold on legitimate reactions against what may be exploitation embodied in hate crime law will not prevent this objective change forever.

Stalinists, as always, want to punish people for unapproved thoughts and emotions. The implication is that the inner, private sphere should be punished, but let the exploitation roll on. Prout wants to end the exploitation. Stalinists will aim at effects; Proutists will aim at causes. It is a question of compulsive social relations (Stalinism) that may conceal economic injustice versus genuine social relations (Prout) that will be nourished by equitable economic conditions. Let it be noted that the Soviet system maintained a structure of exploitation; U.S. hate crime codes could be doing the same. It is a rule of thumb in Prout’s associated philosophy of Neo-Humanism that wherever there is dogma, exploitation is more likely. This is a recipe for the cultivation of bias and hate, not their elimination.

At the same time, it is essential not to encourage genocidal philosophies. It is highly appealing, in this author’s opinion, to make advocating extermination of an ethnic group illegal under the First Amendment, something that by all humanistic values should disappear from political discourse since we are all part of the same human family. The problem with this is that it could be the start of a slippery slope, leading to yet more suppression of speech and thought. This strategy is already being used in hate and bias crime law, as discussed, and elsewhere. It would be premature, given the continued existence of Stalinism and the possibility of exploitation, to allow this strategy further scope. Rather than take that approach, eliminating community-based exploitation could go far in removing any motivation for genocide. The true solution for genocidal tendencies may lie here, not elsewhere.

Random hate crime violence, typified in the crimes by Mitchell, Barclay, and against Matthew Shepherd and James Byrd, may also evaporate if there is exploitation and injustice and they are identified and removed. At the same time, Mitchell, Barclay and their friends should not have been given extra punishment for their beliefs. Their actions were in different degrees heinous, but also extremely foolish and misguided. If there is exploitation and injustice along inter-community lines in the U.S., it will not be uprooted by random violence. Analysis, discussion, education and a healthy ideological foundation will be much more valuable in the long run.

Finally, there are many other kinds of actions that, while not necessarily criminal, could be considered immoral in the Prout view: excess greed, promoting cultural degradation, political hypocrisy and the like. All the focus on hate and bias detracts from issues like these.

We will now turn to the issue of terminology used to provide pre-cognitive support for bias and hate crime legislation.


Emotion Crimes
Hate crime legislation relies on a revulsion toward hate to ground it in the collective consciousness. The question must be asked whether the term “hate” is justified.

The assumption in this kind of law is that hate motivates the perpetrators of hate crimes. This has never been proven, however, but is an emotionally-laden term applied to certain states of mind or belief. To prove that hate is the motivator would require a balanced scientific, or honest introspective, analysis.

It is also possible that what is called hate may be something else. Undoubtedly hate does motivate some of the acts called hate crimes, but whether that tells the whole story is questionable. For example, why cannot what is called hate actually be at least in part anger? Why not intense dislike or even just dislike? Why not strong disagreement? The psychological condition of hate is in fact not proven, though undoubtedly it is present sometimes. But since it is most likely not present all the time, or mixed with other emotions and mental conditions, another term might be better chosen.

One possibility is Dislike Crimes. Another is Crimes of Opposition. Another is Anger Crimes. Another is Crimes Against the Revolutionary Vanguard, in the sense that crimes in this category disturb a certain ideology, as shown. It is not particularly important which term is chosen at this point, but only to open up the issue for a true analysis of motivations, one that is not closed off from the start by the use of an emotional term like hate crime.

In addition, using terms like Dislike Crimes and Anger Crimes brings more into the open the extent to which hate crime legislation actually punishes subjective states, precisely as some of its critics claim. We are just starting to tread in the realm of psychiatry in the service of the State.

When the intellectual component of these crimes is considered, the terms Ideology Crimes and Crimes of Philosophy are also applicable. The discerning reader will understand that some ideas in this category are at root intellectual and political differences, not crimes.

In this light, Emotion Crime is a more truthful term to describe the subject of what is better called Emotion Crime Law, and should replace the deceptive term “hate crime“. Philosophy Crime is another more truthful term, as mentioned. It highlights the intellectual component of this subject, and pertains to the term “bias” sometimes used in conjunction with the term “hate” in buttressing Stalinist legislation.

Emotion crime law also takes advantage of religious ethics that project love and peace as the highest social values; its implication is that hate and anger must be the lowest social values, if not wickedness itself. Prout, too, supports the goal of love, affection, and peace between the various communities whose members are the perpetrators or victims of the class of crimes in discussion. These subjective factors are in fact one condition for enlarging economic boundaries in Prout‘s ethnoculturally-based socioeconomic program.33

Peace is a goal, yes, but peace at any price, no. Lurking behind the criminalization of contrary emotions, economic harm as well as the institutionalization of Stalinist statism may be in progress. As nearly all religious and ethical systems recognize, peace requires certain conditions, and in Prout neither exploitation nor statist centralism is one of them. When exploitation is operational it is called “static” peace and can conceal intra- or inter-community subjugation. Static peace is when peace is maintained by force of law and the police power, and is accompanied by economic or other injustice. Statist oppression also creates static peace. In this light, the subject of emotional causation can hardly be explained by legalized stigmatization.

The legitimacy of legislation against subjective conditions like the emotions under discussion is further undermined by surveying other instances where these emotions can occur. Rather than being stigmatized and punished, some instances of hate, anger, and other oppositional emotions are widely or partly accepted. These include the emotional reactions caused by the following:

(1) Deaths caused by drunk drivers. (MADD, Mothers Against Drunk Driving, was founded on the basis of this emotion.)
(2) The rape of women, girls, and boys.
(3) Infidelity in marriage and relationships.
(4) Cruelty to animals.
(5) Being laid off from work even if a good worker.
(6) Military invasion by a foreign power.
(7) Theft, lies and other forms of immorality.
(8) Slavery.
(9) Economic injustice.
(10) Exploitation of the Third World.
(11) Capitalism.
(12) The United States.

In this light it cannot be said that emotional reactions are wrong per se and at all times. Preaching “Love Thy Neighbor” is cruel and inhuman when it is expected of victims of injustice. Demonization of certain emotions by the term “hate crime” — the crime of hating — is irrational. Those who approve of these emotions in any of the above circumstances while demonizing it here are, to put it politely, guilty of a double standard.

If these reactions to injustice are somehow wrong, perhaps someone will dictate what the appropriate reactions should be and inform the millions who suffer them.

Emotion crime law is the application of legislative and judicial power against thoughts, emotions and beliefs in a select class of circumstances only. It is the use of selective punishment in violation of the principle of equality under law, aimed at the human mind itself.


Prout and Communism
The Progressive Utilization Theory outlines a non-capitalist economic program. More specifically, it accepts capitalism as a stage in history, but does not accept that capitalism is either the best or final economic system; it is not the “end of history” as many assume. This does not, however, mean that Prout is pro-communist. It is rather more against communism than against capitalism; the former goes much farther in suppressing human potentialities and welfare, and is inferior economically. It is not a necessary stage in human history, and the desire for substantive economic justice can be achieved without resort to it. Both the Prout ideology and ground-level struggles in India, particularly West Bengal and Tripura, attest to Prout’s ideological stance.

Stalinism is not a boilerplate system. In the former Soviet Union, it was established by brute force. Saddam Hussein was a choir boy by comparison. This need not mean that the same physical route must be used every time. Many other routes can be used. Nor need this system be established abruptly, in a short period of time. There is no reason why the laws and culture of totalitarianism cannot be established piecemeal, over time. Those who agitate for this system may use different methods depending upon the circumstances. In the case of the Wisconsin hate crime statute, as well as similar statutes in other U.S. states and the Supreme Court decisions in Barclay and Mitchell, it should be clear that Stalinism can be established through the legal system. It is communism the slow way, through legal and other institutions rather than at the wrong end of the barrel of a gun.34

Prout differs from this system not only in economics, but in regard to the intellectual sphere as well. Though it recognizes that at any given moment material resources are limited and that excess accumulation must be checked, Prout supports unlimited intellectual freedom. It does not support dogmas. Dogmas are ideas, but ideas with rigid boundary lines. Those promoting a particular dogma will not allow others to question it and thereby go beyond its limits.35 They are thought taboos, and keep people narrow-minded rather than promote mental expansion. People become afraid to think or speak out., or guilty about what they do think and feel.

In a speech given in Istanbul in 1979, the author of Prout mentioned religious dogmas in this regard, but also communism: “It is such a dogma. It won’t allow you to think beyond its periphery.”36 Prout supports intellectual freedom; communism, which is a socioeconomic religion in the Prout view,37 will at some point suppress the intellect. This has been proven by history time and again and ought to be considered inherent in this ideology. As such, the attempt to establish U.S. law on Soviet foundations is probably ultimately aimed at crushing freedom and dissent. The church of Karl Marx is alive and well despite the demise of the Soviet Union.

Moralists may want to reconsider any support they have for emotion crime law in light of this analysis and related critiques. Marxists may want to as well. Western Marxists almost inevitably claim that the Soviet Union was not real Marxism. They can back up their claim by denouncing this legislation. This will help separate the progressive wheat from the Stalinist chaff. Persons who fail to denounce it after due reflection will be liable to be considered sympathizers or members of the American Stalinist movement, perhaps rightly so. The innocence behind this legislation, if there ever was any, is unsustainable.

It is disconcerting when state legislatures as well as the Supreme Court allow Stalinism to make headway in American law. Courts in particular are supposed to have a highly developed sense of judgment. It is difficult to claim that members of these bodies are Stalinist. Many of them, however, probably cannot tell the difference between laws that actually protect freedom and laws that only claim to protect justice, due to the nature of this issue. Nevertheless, it seems clear that when it concerns freedom of speech and freedom of intellect, legislatures and courts are failing in their mission. It is also possible that Stalinists do exist in important social positions, though more likely incognito. Appendix A gives a list of people and organizations who submitted briefs supporting emotion crime law in the Mitchell case38; Appendix B, those opposing.39


Conclusions
It has been shown that every single justification the Supreme Court gives in support of emotion crime legislation is faulty. It has also been shown that this legislation punishes freedom of speech and thought, creating a suppressive atmosphere. The origins of this law lie not in a philosophy respective of human freedom, but in Stalinism, a philosophy inimical toward human freedom. Hopefully, to the discriminating reader the Stalinist nature of this legislation has been proven beyond a reasonable doubt. Let us be frank with ourselves that emotion crime law represents gradual evolution toward governmento-legal tyranny and that the foundations of American law are becoming more Soviet. Work is underway to transform the U.S.A. into the U.S.S.R. of A.

This Stalinization of law may also work in the service of economic exploitation. At the very least it keeps mum about certain forms of exploitation that may arise.

The question now is what to do to restore the freedom that has been compromised. The Supreme Court, slow in changing its mind and overturning precedent, can allow this attack on freedom of ideas to drag on for decades, if it ever does reconsider the issue. State legislatures and Congress, however, are much more responsive to the public will. Moralists and well-meaning people are free to use whatever arguments in this analysis against emotion crime legislation and the establishment of Stalinism in legislative and Congressional halls they wish.

Students are also welcome to discuss this article and establish a base inside universities for future enlightened faculties and liberated legislatures. If Stalinist ideas permeate their schools, students may consider carving out free zones where they can discuss these issues in peace. Ideas like those examined here are obstacles on the road to a better socioeconomic system, and the sooner they disappear the better. Rational analysis uninhibited by dogmas can be a powerful force for good.

Citizens of non-U.S. countries who find their thoughts and expression handcuffed by the same laws and ideology may want to take up the cause of intellectual freedom as well.

Finally, love and affection amongst cultural communities cannot be established by fiat. Emotion crime legislation holds the weapon of law to people’s heads to try to force love and affection on people, as if force can create such things. Rather, the causes of disaffection ought to be eliminated first, especially community profit-mongering and subjugation, which can occur despite equal civil rights. Forced modes of interaction against this background, if it does exist, may have some success, but will also leave large swathes of bad faith and pseudo-affection spread across America, and more likely simmering discontent if not random crime. It is sad and unfortunate that such disaffection can exist and it would be better if it did not. Peace and affection can be had, but certain obstacles may have to be removed first. A true anti-hate campaign will aim at causes, not in Soviet fashion at people’s thoughts, beliefs and emotions. Moralists, of Left and Right, may want to reconsider emotion crime law accordingly.


Notes
1. Wisconsin v. Mitchell, 508 U.S. 476, FindLaw, http://laws.findlaw.com/us/508/476.html, 1993.
2. Ibid.
3. Brooks, Matthew, and Leibsohn, Seth. “Hate-crime laws actually retard civil rights progress”, Jewish Bulletin of Northern California, http://www.jewishsf.com/bk990827/comm2.shtml, 2003.
4. Taylor, Jared. “Hate Crime Laws Miss the Point“, http://jeffsarchive.com/hate%20crime/
Hate%20Crime%20Laws%20Miss%20the%20Point.html, 2000.
5. Ibid.
6. Ibid.
7. Poe, Richard. “Welcome To the First Annual Hate Crime Hall of Shame”, FrontPageMagazine.com, http://www.frontpagemag.com/Articles/Printable.asp?ID=1305, 2001.
8. Ibid.
9. Ibid.
10. New York Christian Coalition. “The Problem with Hate Crime Law,” http://www.nychristiancoalition.org/HateCrimesLaws.htm, no date.
11. Holleran, Scott. “Society must punish the crime -- not the thought”, The Miami Herald, http://www.fiu.edu/~yaf/justicenottotalit.html, 1998.
12. Mitchell, op cit.
13. Ibid.
14. Ibid.
15. Ibid.
16. Ibid.
17. Ibid.
18. Barclay v. Florida, 463 U.S. 939, FindLaw, http://caselaw.lp.findlaw.com/scripts/
getcase.pl?navby=case&court=us&vol=463&page=939, 1983.
19. Ibid.
20. Ibid.
21. Ibid.
22. Courtois, Stephane, et al. The Black Book of Communism: Crimes, Terror, Repression, trans. by Murphy, Jonathan, and Kramer, Mark, Harvard University Press, Cambridge, Massachusetts, 1999, pp. 4, 17, 464. The authors of this book are French scholars, including leftists and several who have supported the Leninist-Stalinist, Trotskyite or Maoist movements.
23. Barclay, op cit.
24. Federal Bureau of Investigation. “Crime in the United States, 2000”, http://www.fbi.gov/pressrel/pressrel01/cius2000.htm, 2001.
25. Mitchell, op cit.
26. Cunningham, Hugo S. Criminal Code of the RSFSR, http://www.cyberussr.com/rus/uk59-e.html, 2000. Much gratitude is owed Mr. Cunningham for translating the criminal codes of the Russian Soviet Republic.
27. A nearly identical code exists in Article 58. Aleksandr Solzhenitsyn enlightened the world about the Soviet system of crime and punishment in his novel The Gulag Archipelago, focussing much attention on this Article. Those punished by it would call it the more infamous of the codes. It criminalizes “Propaganda or agitation, containing a call for the overthrow, subversion, or weakening of Soviet authority ... during mass disturbances, or with the use of religious or nationalist prejudices of the masses, or in a war situation, or in areas proclaimed to be in a war situation“ (italics added) (Article 58, http://www.cyberussr.com/rus/uk1-e.html#16). It is interesting how even the same reference to what are called “prejudices” is used in this translation of Soviet law as in bias crime discourse. The subject of Article 58 is “Counterrevolutionary Crimes” against the Soviet state. In writing about Article 58 and imprisonment in the Soviet penal colonies, Solzhenitsyn lamented, “Who among us had not experienced its all-encompassing embrace? In all truth there is no step, thought, action, or lack of action under the heavens which could not be punished by the heavy hand of Article 58.” (Solzhenitsyn, Aleksandr. The Gulag Archipelago 1918-1956, Harper & Row, New York, 1973, p. 60)
Article 59-7, discussed here, concerns “Crimes against the order of government”, i.e., acts aimed not at overthrow but that disturb government functioning. Article 59-7 is discussed here rather than 58 for convenience. It is worthy of note, however, that bias and hate crimes do not seem aimed at overthrow of the government, but do disturb the order of society as ordained by Stalinist influence on government. On their deepest level, any philosophies behind hate and bias crimes are probably considered counter-revolutionary, however, to the extent American Stalinists are behind this law.
28. Mitchell, op. cit., italics added.
29. Sartre, Jean-Paul. Being and Nothingness: A Phenomenological Essay on Ontology, trans. Hazel E. Barnes, Washington Square Press, New York, 1956, pp. 86 and following.
30. Sarkar, P.R. “Human Society Is One and Indivisible”, Neo-Humanism in a Nutshell, part two, AMPS, Calcutta, 1987, p. 18, italics added.
31. Sarkar, P.R. Works of P.R. Sarkar, diskette edition, no date.
32. Sarkar, P.R. “Human Society Is One and Indivisible”, p. 18, italics added.
33. Sarkar, P.R. See in particular “Socio-economic Groupifications” and “Developmental Planning”, Proutist Economics: Discourses on Economic Liberation, AM Publications, Calcutta, 1992, pp. 21-29, 193-203.
34. This difference in approach reflects the difference between evolution and revolution in social change. The former involves the application of force that accelerates the natural rate of change, the latter the tremendous application of force. Please see “The Principles of Prout”, principles three and four, Proutist Economics, p. 2. Evolutionary and revolutionary force can also be applied to reverse social change, as in the takeover of Iran and Afghanistan by clerics, but will ultimately prove fruitless. Emotion crime law might be considered counter-evolutionary, a return to an era when priestly intellectuals could punish heresy, but it is as likely a tool of economic exploitation, and so the application of force to prolong the modern era.
35. Sarkar, P.R. “Beware of Dogma“, Prout in a Nutshell, parts 7-9, AMPS, Calcutta, 1987, part 9, p. 9.
36. Op. cit., p. 10, italics added.
37. Sarkar, P.R. “Defects of Communism,“ Proutist Economics, p. 80.
38. Mitchell, op. cit.
39. Mitchell, op. cit.

Pre-edited American flag courtesy of Historyimages.com, http://www.historyimages.com/flag/50star-medium.gif


Appendix A: Those submitting briefs supporting emotion crime legislation in the Mitchell case38

Michael R. Dreeben argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Bryson, Acting Assistant Attorneys General Keeney and Turner, Kathleen A. Felton, and Thomas E. Chandler. [508 U.S. 476, 478]

Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, Andrew S. Bergman, Assistant Attorney General, and Simon B. Karas, John Payton, Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective States as follows: James H. Evans of Alabama, Charles E. Cole of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, Robert A. Marks of Hawaii, Larry EchoHawk of Idaho, Roland W. Burris of Illinois, Pamela Carter of Indiana, Bonnie J. Campbell of Iowa, Robert T. Stephan of Kansas, Chris Gorman of Kentucky, Richard P. Ieyoub of Louisiana, Michael E. Carpenter of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah W. Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Robert J. Del Tufo of New Jersey, Tom Udall of New Mexico, Robert Abrams of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Susan B. Loving of Oklahoma, Theodore R. Kulongoski of Oregon, Ernest D. Preate, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Charles W. Burson of Tennessee, Dan Morales of Texas, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, Mary Sue Terry of Virginia, Christine O. Gregoire of Washington, Daryl V. McGraw of West Virginia, and Joseph B. Myer of Wyoming; for the city of Atlanta et al. by O. Peter Sherwood, Leonard J. Koerner, Lawrence S. Kahn, Linda H. Young, Burt Neuborne, Norman Dorsen, Neal M. Janey, Albert W. Wallis, Lawrence Rosenthal, Benna Ruth Solomon, Julie P. Downey, Jessica R. Heinz, Judith E. Harris, Louise H. Renne, and Dennis Aftergut; for the American Civil Liberties Union by Steven R. Shapiro and John A. Powell; for the Anti-Defamation League et al. by David M. Raim, Jeffrey P. Sinensky, Steven M. Freeman, Michael Lieberman, and Robert H. Friebert; for the Appellate Committee of the California District Attorneys Association by Gil Garcetti and Harry B. Sondheim; for the California Association of Human Rights Organizations et al. by Henry J. Silberberg and Mark Solomon; for the Chicago Lawyers' Committee for Civil Rights [508 U.S. 476, 479] Under Law, Inc., by Frederick J. Sperling and Roslyn C. Lieb; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; for the Crown Heights Coalition et al. by Samuel Rabinove, Richard T. Foltin, Kenneth S. Stern, Elaine R. Jones, and Eric Schnapper; for the Jewish Advocacy Center by Barrett W. Freedlander; for the Lawyers' Committee for Civil Rights of the San Francisco Bay Area by Robert E. Borton; for the National Asian Pacific American Legal Consortium et al. by Angelo N. Ancheta; for the National Conference of State Legislatures et al. by Richard Ruda and Michael J. Wahoske; and for Congressman Charles E. Schumer et al. by Steven T. Catlett and Richard A. Cordray.


Appendix B: Those submitting briefs opposing emotion crime legislation in the Mitchell case39

Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union of Ohio by Daniel T. Kobil and Benson A. Wolman; for California Attorneys for Criminal Justice by Robert R. Riggs, John T. Philipsborn, and Dennis P. Riordan; for the Center for Individual Rights by Gary B. Born and Michael P. McDonald; for the National Association of Criminal Defense Lawyers et al. by Harry R. Reinhart, John Pyle, Sean O'Brien, and William I. Aronwald; for the Ohio Public Defender by James Kura, Robert L. Lane, James R. Neuhard, Allison Connelly, Theodore A. Gottfried, Henry Martin, and James E. Duggan; for the Wisconsin Freedom of Information Council by Jeffrey J. Kassel; for the Reason Foundation by Robert E. Sutton; for the Wisconsin Association of Criminal Defense Lawyers by Ira Mickenberg; and for Larry Alexander et al. by Martin H. Redish.

Briefs of amici curiae were filed for the Lawyers' Committee for Civil Rights Under Law by Paul Brest, Alan Cope Johnston, Herbert M. Wachtell, William H. Brown III, and Norman Redlich; and for the Wisconsin Inter-Racial and Inter-Faith Coalition for Freedom of Thought by Joan Kessler. [508 U.S. 476, 479]

© 2003, the author