Greg McMichael, Travis McMichael, and their buddy, William Bryan killed Ahmaud Arbery, a black man. These defendants are despicable people. They should be stuffed away in a cage and never allowed into the world again. In fact, they have already been convicted of Arbery’s murder and have been sentenced to prison, so they are being stuffed away, and stuffed into a place where their fellow inmates will likely not accept them with open arms unless those arms are holding a shiv.
But now they are on trial again. This new trial is seeking to prove that they killed Arbery because they hated black people. This is called a “hate crime trial.”
I have a problem with “hate crimes – they punish people for their thoughts.
We have a criminal justice system founded on the idea that we punish people for what they do, not for what they think. Freedom of thought is fundamental to our idea of liberty. There are many science-fiction stories that portray societies where a despotic government punishes people because they have thought banned thoughts. And we decry other countries who jail their citizens for opinions that their governments want to suppress. We should not become like a science fiction story or a despotic society. But, yet, we have hate crimes.
At the same time that we want to consider ourselves as free, we prosecute people on the basis of what they think. What the Arbery killers did was already prosecuted. They got convicted and sentenced. This trial now is about what they think – that they hate black people. The evidence being adduced at the trial includes Facebook posts, social media comments and texts that express horribly racist ideas. In one, Travis McMichael wishes for a semiautomatic rifle so that he can shoot people that he describes as “goddamn monkeys.” Frequent use of the N-word has been shown. There was a video of a racist song. The F.B.I. Agent who reviewed all of the defendants’ social media testified that it showed “a pattern seen over several years.”
That they killed a black man is a given. The evidence now before the jury is about their attitudes – their racism. The jury is now being asked to convict them because they have racist opinions.
Of course, this is not a sympathetic case for my argument. People with racist opinions are assholes. In fact, these people soil the word, “assholes.” If anyone justifies cruel and unusual punishment, these defendants do. They are monsters. But this does not change the fact that their hate crime trial is making a crime out of what they think, and not about what they did. The Arbery killers harbor atrocious thoughts, but it is the mark of a free society that we don’t force people to have only popular thoughts. It is the mark of a free society that it allows unpopular thoughts.
The law under which this prosecution is being undertaken says, in part, that the Federal government can charge people if the State charges “left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.” That is certainly a laudable goal. However, it means that the Federal government has the right to inquire into a person’s motives. This is more than just the ordinary requirement that the prosecution prove “intent.” This allows the prosecution to examine your biases – your opinions.
And if that is not bad enough, there is another standard in the same law that allows the Federal government to prosecute a hate crime if it “is in the public interest and necessary to secure substantial justice.” Wow! How wide open a door is that to a future Justice Department under a Trump-ish President who would be allowed to come after a trespassing protestor who held a sign that the President didn’t like.
There may be a way to argue that hate crimes don’t violate our freedoms under the Constitution. Courts can justify almost anything if they want to (and that could be the subject of an entirely different discussion). But just because something may be legal doesn’t mean that we should do it. We have to guard our moral rights as well as our legal rights in order to preserve all of them. We can’t let that guard down just so that we can satisfy our anger and punish the monsters among us like the Arbrey killers. Our sense of right and wrong must apply to everyone – monsters and angels alike.
As Supreme Court Justice Potter Stewart once said, “Ethics is knowing the difference between what you have a right to do and what is right to do.”
Let the Arbery killers rot in hell. Because of them, though, and people like them, let’s not rot our justice system.
We were right 
An interesting opinion. Being fully aware that my qualifications for adding my two cents do not come with the bona fide status of a being a “real” attorney such as yourself (although I do recall acing the Business Law course included in my C.P.A. Prep curriculum at Pace University and as a segment of the C.P.A. exam, which elevates me well above Rudy Giuliani and a host of other pseudo-attorneys I’ve encountered in my life), nevertheless, herewith are my pennies:
The basis for “hate crimes” are presumably rooted in the fact that certain crimes are not only against the specific aggrieved but are also against a wider array of individuals who will be intimidated by the crime, in fact, intentionally intimidated. In a perfect world, the lynching of a black man should be abhorrent and intimidating to ALL people but, U.S. history being what it is, when a black man is lynched, the perpetrator is intending to cause emotional distress and fear to more than just that specific individual. Are non-black persons likely to register distress and fear at a level remotely near that of other black people? Certainly, it could be reasonably argued that they would not. Is there an actual “harm” to other black people, real and intentional, that justifies some legal prosecution? Again, it could be reasonably argued there is. Does the penalty for lynching one man equate to justice for that man AND all others harmed by the act? If someone kills two people, they would normally get more punishment than had they killed only one. But how to prove the intent? Therein lies the rub that provokes your post. I don’t know the correct answer but I believe there is an additional wrongdoing beyond the specific victim, it can be intentional, it can be effective and it should be addressed. Having said all that, I have to punt because I don’t have enough brain cells to bring home a supportable conclusion.
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As usual, I agree with your concerns, but am still worried about the trend exhibited by these kinds of cases. Hate crime prosecutions were intended for situations where the state had failed to fully vindicate the kinds of rights you describe, like the all-too-frequent inability of southern states to prosecute whites who killed black people. This wasn’t one of those cases – these guys were already convicted – the state did its job. The federal prosecution was unnecessary and solely a trial over what these people think. Again, because these people think horrible things, it is easy to be sympathetic to what happened. But, other future Justice Departments could turn the tables and, say, prosecute already convicted Black Lives Matter protestors for their ideas. That wouldn’t be good.
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You and Cyril both make good arguments. Guy, your argument, grudgingly, makes sense, although not a popular one. I heard that the prosecution argued that these men robbed Aubry of his civil rights. Their hate caused them to pursue and kill him just for jogging down the street. Their hate was manifested in their actions. If they didn’t hate him because he was Black, they wouldn’t have committed the crime. Hate was the reason that they killed him. They weren’t convicted for their racist emails and other posts. Even ugly speech is protected. All that was just the evidence of their hate. All I know is that it’s gratifying to know that those 3 murderers will spend the rest of their sorry lives rotting in prison. It also makes me hope that it will give pause to some other bigots who might think twice about getting away with murder.
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I tried to leave a reply to you but it doesn’t look like it took. Maybe this website is getting tired of my opinions. Anyway, I just wanted to say that your comment, again, is well taken. I just worry about the tables being turned in these kinds of cases. Once we prosecute people for opinions we rightly detest, how far away are we from prosecutions for opinions other people detest?
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(disclaimer: I may not be an attorney but I play one in my mind)
I suppose people kill for all kinds of reasons. Revenge, money, jealousy, as part of another crime (e.g. robbery, sexual assault), anger, even accidentally. For prosecutors to convict, proving means, opportunity, motive (why) and intent (expected result) to commit a crime are basic tools. While showing means, opportunity and even intent may be often self-evident, motive requires delving into the mind and thoughts of the accused. For example, a spouse is murdered for insurance money (motive) with a gun (means), while home alone (opportunity), with obvious reason needing the spouse dead (intent). Pretty simple in this case. “Hate crimes” may not be so easy to prove all four elements. In the Arbery case, means (shotgun), opportunity (Arbery in neighborhood), intent (inflicting lethal bodily harm) are all relatively clear. Motive remained enough of a question, that the defense claimed it was self-defense. Prosecution was left to prove yet a different motive…racial hatred. Just because someone mentally hates a different race does not make them a criminal. Deplorably prejudiced perhaps, as evidenced by years of hate speech and posts, this trio were not criminals. That is, until acting on this thinking was coupled with means, opportunity and intent. The claim of self-defense virtually obligated prosecutors to prove a different motive. While common sense would indicate racial hatred was the motive, it could only be shown by years of comments, posts and hate speech by the accused. Certainly obvious racial hate resulted in the murder of Emmett Till, yet, was never attempted to be proven by prosecutors. As matter of fact, defense included interjecting doubt as to whether the victim was actually Till. In the Till case, motive included intimidation of all Southern Blacks setting Till as the “example”. Proving racial hatred in the South would have been a fool’s errand anyway. Sometimes even the obvious is beyond “proof”.
Proving a hate crime is often so futile, prosecutors rarely attempt it. In the Arbery case, the defense itself created the need to prove racial hate as the motive. Thanks to social media, it wasn’t that tough to show it. In cases of Floyd, Martin, Locke, Taylor and others, hate crime was not even considered. But, in truth, isn’t it really the case? And, in the Arbery case, isn’t it about time?
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The problem in this case is that these guys already were convicted for what they did. They only requirement for intent in that prosecution was intent to commit the crime. That was proven. The “reason” for that intent delves into the realm of opinion, however atrocious that opinion is.
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