Saturday, November 22, 2008

Crime is crime - are penalty enhancements necessary?

I just said the following in a FriendFeed thread started by Scott from Canada:

I see no difference between assaulting a black policewoman with a gun and assaulting a white insurance agent with a knife.

While this was prompted by one of several "Kick a Ginger Day" stories regarding the hate crime of beating up red-haired people, my example shows that this is not just a matter of loony liberal political correctness gone wild. You find penalty enhancements that are championed by those on the right side also, including enhancements for targeting a police officer, enhancements for assaulting a flag (as opposed to another piece of cloth), and enhancements for committing a third crime after already committing two.

Here are a few examples of different types of "penalty enhancements." Let's start with the Anti Defamation League's page on Wisconsin's Penalty-Enhancement Statute. The page quotes from parts of Wisconsin law:

If a person does all of the following, the penalties for the underlying crime are increased...

(a) Commits a crime under chs. 939 to 948.

(b) Intentionally selects the person against whom the crime under par. (a) is committed or selects the property that is damaged or otherwise affected by the crime under par. (a) in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor's belief or perception was correct.

Then there's the Identity Theft Penalty Enhancement Act. Here's what President Bush said about it back in 2004:

The Identity Theft Penalty Enhancement Act...prescribes prison sentences for those who use identity theft to commit other crimes, including terrorism. It reflects our government's resolve to answer serious offenses with serious penalties....

The law I sign today will dramatically strengthen the fight against identity theft and fraud. Prosecutors across the country report that sentences for these crimes do not reflect the damage done to the victim. Too often, those convicted have been sentenced to little or no time in prison. This changes today. This new law establishes in the federal criminal court the offense of aggravated identity theft. And someone convicted of that crime can expect to go to jail for stealing a person's good name. These punishments will come on top of any punishment for crimes that proceed from identity theft. For example, when someone is convicted of mail fraud in a case involving stolen personal information, judges will now impose two sentences, one for mail fraud, and one for aggravated identity theft. Those convicted of aggravated identity theft must serve an additional mandatory two-year prison term. Someone convicted of aggravated identity theft, such as using a false passport in connection with a terrorism case, would receive an additional prison sentence of five years. In addition, judges will not be allowed to let those convicted of aggravated identity theft serve their sentence on probation.

And there are other examples of penalty enhancements, such as San Diego DUI Offense in a Highway Construction or Maintenance Zone Penalty Enhancement.

So, why are these enhancements supported? Isn't a DUI, for example, bad enough in and of itself without having to set up special rules for construction zones? Dhammika Dharmapala (Univeristy of Connecticut) and Nuno Garoupa (Universidade Nova de Lisboa) argued
as follows in their paper "Penalty Enhancement for Hate Crimes: An Economic Analysis" (presumably the analysis applies to non-hate crime penalty enhancements also):

We begin with the assumption that the harm to an individual victim from a bias-motivated crime is identical to that from an equivalent non-hate crime. Nonetheless, we derive the result that a pattern of crimes disproportionately targeting an identifiable group leads to greater social harm.

Or, if not against an identifiable group of people, then against some symbol - such as an American flag. I talk about the penalty enhancement of flag desecreation in another post.

Perhaps it's appropriate to categorize this as the harm to society vs. the harm to an individual. In my example, the black policewoman and the white insurance agent themselves go through the same ordeal, but what about the effects on others? For example, if you assume that the cop was targeted because she was a cop, but the insurance agent was not targeted because he was an insurance agent, then the first assault will lead to fear in the police officer community, while the second assault will not lead to a comparable fear among insurance agents.

On the other hand, some argue that the penalty enhancements themselves are not fair. Take three strikes laws (which mandate a minimum, severe sentence when one is convicted of a third crime):

Many of the defendants sent to jail under three-strikes laws are non-violent repeat offenders. The original intent of the law was the stop violent criminals, but the result has been that criminals with a history of minor offenses, such as petty theft or drug dealing, are being sent away for longer terms than criminals who commit violent acts. The prison population has grown so much that most are already filled beyond capacity and many more prisons need to be built; tax payers will have to foot the bill. Three-strikes laws are not effective crime prevention measures, they are unnecessarily harsh sentencing guidelines that punish harmless petty criminals and overcrowd our prisons.

And take hate crimes laws, where it is alleged that some types of hate are worse than other types of hate:

The sad truth is that hate-crime laws are a door that only swings one way. Certain classes of people get protection; others are ignored. Such hypocrisy is evident in Utah when LDS chapels are defaced, vandalized or put to flame. The media and law enforcement officials generally refer to such events as mere incidents of vandalism.

However, if the very same act were perpetrated at a synagogue, a mosque or a gay bar, there would be a firestorm of public outrage. It is well to punish criminals who carry out vicious and wanton acts of violence or destruction, but let's do so with some sense of fairness.

When one talks about fairness, one must go to the Eighth Amendment to the U.S. Constitution:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

But the Supreme Court (in this case, Justice Scalia) has held that tough mandatory sentences are not in violation of this amendment. Harmelin v. Michigan:

Petitioner Harmelin was convicted under Michigan law of possessing more than 650 grams of cocaine and sentenced to a mandatory term of life in prison without possibility of parole. The State Court of Appeals affirmed, rejecting his argument that the sentence was "cruel and unusual" within the meaning of the Eighth Amendment. He claims here that the sentence is cruel and unusual because it is "significantly disproportionate" to the crime he committed, and because the sentencing judge was statutorily required to impose it, without taking into account the particularized circumstances of the crime and of the criminal....

Justice Scalia delivered the opinion of the Court with respect to Part V, concluding that Harmelin's claim that his sentence is unconstitutional because it is mandatory in nature, allowing the sentencer no opportunity to consider "mitigating factors," has no support in the Eighth Amendment's text and history. Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout the Nation's history....

Still, despite my recognition that we are part of a society and need to behave as such, I'm still rubbed the wrong way by laws that make fundamentally the same crime subject to two different types of sentences.

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