About Michael Troy Expertise I will answer general questions regarding freedom of speech, petition, or religion. I specialize in cases involving public employment or education, as well as issues related to campaign finance. But I can`t give specific legal advice involving specific cases you might have.
Experience As an attorney for the Center for Individual Rights, I worked on a number of free speech cases, including Rosenberger v. Univ. of Virginia, in which the Supreme Court upheld my clients' right to run a student newspaper without discrimination because of its religious conent. I also worked on White v. Julian, which protected the right of people to protest against a homeless shelter in their neighborhood.
I also worked for the Federal Election Commission on several cases regarding the right to participate in the election process.
Organizations Former Attorney for Center for Individual Rights.
Publications Washington Post
Washington Times
Education/Credentials J.D. from Univ. of Michigan Law School
Question I realize that my question may require some depth of an answer but my intent is to find the "simple" reason.
I understand that in the United States our constitution protects its citizens from having to testify against themselves in a criminal court. I am also aware that should a defendant in a criminal allow himself to be examined he/she has the ability to evoke the 5th amendment when the question may incriminate the defendant. I know these are true, but I do not know why.
Why is a defendant who is charged with a crime such as rape or murder protected from questions from a prosecutor? Why does the 5th amendment offer such protection? What does society as a whole gain from that protection? What history was taken into consideration when the 5th amendment was written? Does English Common law, in which our legal system is largely based, offer the same protection?
And on a side note/question.... The issue of separately defining "hate crimes" from other crimes. Why should a penalty be greater for someone who killed a bank teller be less then someone who killed a gay man only because the victim was gay? Is it possible to legislate morality and isn't murder murder, no matter what the reason? I obviously have my own ideals and beliefs but I am curious as to what the opposing view points are and what is it that fuels such a debate.
So any help with these questions would be appreciated.
Thank you, Jason
Answer Hi Jason,
The right against self-incrimination has not always been consistenly enforced, but it has been a part of the Common Law since at least the 13th Century. In one of the early commentaries on the Magna Carta of 1215, it says that "for a man to accuse himself was and is utterlie inhibited." It is also commonly-cited in a Latin phrase "nemo tenetur seipsum prodere" which means "no man is bound to accuse himself".
The principle comes from the concept that it is inherently unjust to force a man to participate in the process that would kill him (virtually all crimes at that time were punishable by death). It was also an attempt to set a clear distinction from the older medieval inquisitorial system where an accused was tortured into confession before execution. The newer legal system forced development of a case against the accused without any cooperation. The State would have to prove its case beyond all reasonable doubt before an accused would be compelled to respond.
The right is one of those things that is really based on experience rather than logic. Logically, why shouldn't an accused be compelled to answer? An innocent man has nothing to fear and a guilty man should be prosecuted and found guilty. But history has taught us repeatedly that when an accused can be compelled to cooperate in his own prosecution, it all too frequently leads to prosecutorial abuse. The right helps ensure an accusatory system of justice rather than an inquisitorial one.
For these reasons, the right against self-incrimination has long been a cornerstone of British common law. It became a cornerstone of American law as well. Even before the adoption of the 5th Amendment, most State Constitutions had similar clauses.
As to your other question on hate crimes, it has always been acceptable to give a shorter or longer sentence, or even create a different definition of a crime based on the intent or motivation of the perpetrator. For example, a man who kills in a fit of rage is guilty of manslaughter while a man who kills for a well thought out reason such as to make money is guilty of murder and gets a far harsher sentence. Someone who breaks into another's home with the intention of committing a felony is guilty of burglery. Someone who does the same thing with the intention of taking a nap is guilty only of trespass.
The idea behind this thinking is that people who commit crimes for some reasons are more dangerous to society than those who commit the same crime for other reasons.
The justification for hate crimes legislation is that people who commit terrible crimes just because they don't like someone's race, sex, religion, sexual preference, etc. are a greater danger to society than someone who commits a crime because they need the money. Whether or not that is true, that is what the legislature had decided.
Is this legislating morality? Well we make those distinctions all the time. When we decide that it is "justifiable homicide" for a man to kill someone caught sleeping with his wife but not justifiable when a wife kills her abusive husband, that is a moral judgment that we as a society make. We have far more direct laws legislating morality such as regarding prostitution, gambling, recreational drug use, obscene materials, adultery, etc. Whether it is a good idea is one thing, but sovereign powers have long held such a right.
The question gets harder when you talk about federal laws. Unlike states, which have general police powers to legislate on just about anything unless is is specifically prohibited by the Constitution, the federal government only has limited authority to create laws based on the powers explicitly granted in the Constitution.
Most laws against private citizens are passed under the "commerce clause" which gives the federal government the power to regulate commerce amount the States. The Courts have interpreted this to mean any action that affects interstate commerce is regulable. One extreme case is where the feds regulated how much wheat farmers could grow. One farmer said he only wanted to grow wheat to feed his own animals on his own farm, so that could not possibly be interstate commerce. The Supreme Court disagreed, reasoning that if the farmer was prevented from growing his own wheat, he would have to buy it on the open market, thus affecting interstate commerce.
The Court has set some limits, however, on how far the feds can reach. Recently, the Court struck down part of the Violence Against Women's Act, which made it illegal for people to commit a crime with a sex-based animus. The Court said that targeting crimes motivated by the sex of the victim had nothing to do with interstate commerce. Unlike States, the Federal Government is not permitted to legislate morality. It may only regulate commerce.
But I think your broader question is that even if legislatures have the authority to create hate crime laws, should they? My personal view is "no." A crime is a crime. If you commit murder, you should be punished for murder, whether you did it because the victim was black or because you wanted the $2.00 in his pocket. It may be a consideration whether it was planned in advance or done in the heat of the moment, but its basic purpose does not hold much moral difference to me.
Also, truly proving one's motivation as a component of the crime is virtually impossible. A prosecutor might easily prove that person A shot and killed person B, but it can never prove what person A was thinking at the time (absent a confession). Instead, the prosecutors admit all sorts of prejudicial evidence about the accused's political associations or past statements that may be racist, sexist or whatever. In short, you end up putting the accused's beliefs on trial rather than the criminal acts.
I think the political appeal of hate crimes laws are that they can let Democrats pass "tough on crime" legislation that appeals to their minority political base, and put Republicans in the difficult positions of sounding like they support crimes against minorities if they oppose the legislation. I see it as more of a cheap political stunt than any serious attempt to create a better society.
