New Jersey’s Thought Crimes—excuse me, Bias Crimes—statutes
It is not as easy as you would expect to find state penal codes online, or the section of a penal code that you want. After several failed attempts, I did finally find something on New Jersey’s law on bias crimes, not in the New Jersey Criminal Code itself, but in a
document called Criminal Law Digest, a kind of commentary on the law intended for lawyers. It’s a reasonable start.
Section I deals with what seems to be a general provision for extending sentencing for any crime, if the purpose of the crime was to intimidate because of gender, or, contradictorily (the paragraph is poorly written), to intimidate because of race, religion, sexual orientation, ethnicity, etc.:
BIAS CRIMES
I. EXTENDED TERM SENTENCING
N.J.S.A. 2C:44-3 provides that the court “shall, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime … if the grounds for the application is purpose to intimidate because of gender, to an extended term if it finds, by a preponderance of the evidence … ” that “[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, religion, sexual orientation or ethnicity.” …
Section II, dealing with harassment, does not just give an extended sentence if the crime was motivated by bias. It raises the level of the offense from “petty disorderly persons offense” (i.e., a misdemeanor) to a crime of the fourth degree (i.e., a felony for which the defendant can be sentenced to state prison):
II. HARASSMENT
N.J.S.A. 2C:33-4d elevates the petty disorderly persons offense of harassment to a crime of the fourth degree “if in committing the offense, the defendant “acted with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, handicap, sexual orientation or ethnicity.” …
Section III does the same thing as section II, but with regard to assault: it elevates a mere disorderly persons offense to a felony:
III. ASSAULT
N.J.S.A. 2C:12-1e elevates the disorderly persons offense of simple assault to a crime of the fourth degree if the person acted with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, handicap, sexual orientation, or ethnicity.”
This cannot be emphasized enough. In New Jersey, if you are convicted of harassing a person or of committing a simple assault on a person, each of which is in itself a disorderly persons offense,
and if your motive was to intimidate the person because of his membership in a protected victim group, you don’t just get a longer sentence; the CLASS of the offense is raised, from a disorderly persons violation to a crime of the fourth degree, i.e., to a felony. Solely on the basis of the added ingredient of bias, your behavior is changed from a misdemeanor (the maximum possible sentence for which is probably six months in a local jail) to a felony that can put you in state prison for years. Bias does not just add to the severity of the punishment;
bias alone transforms a misdemeanor into a crime.
How can this criminalization of thought—going against our entire criminal law tradition—have been found constitutional?
Not only that, but, in the case of harassment, the severity of the offense is raised by two levels. I came upon this phrase in a New Jersey statute: “No person charged with a crime of the fourth degree, a disorderly persons offense or a petty disorderly persons offense shall be required to deposit…” So in ascending order of severity, there is petty disorderly persons offense, then disorderly persons offense (both the equivalent of misdemeanors), then crime of the fourth degree. Bias in the case of harassment results in the class of the offense being jumped by two levels, from petty disorderly persons offense to crime of the fourth degree.
Here is the full text of the section discussed above.
BIAS CRIMES
I. EXTENDED TERM SENTENCING
A. Statutory Provision:
N.J.S.A. 2C:44-3 provides that the court “shall, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime, other than a violation of N.J.S. 2C:12-1a., N.J.S. 2C:33-4, or a violation of N.J.S. 2C:14-2 or 2C:14-3 if the grounds for the application is purpose to intimidate because of gender, to an extended term if it finds, by a preponderance of the evidence … ” that “[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, religion, sexual orientation or ethnicity.”
B. Constitutionality
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), rev’g State v. Apprendi, 159 N.J. 7 (1999).
The Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Thus, N.J.S.A. 2C:44-3e is unconstitutional because it authorizes an increase in the maximum prison sentence based upon a trial judge’s finding, by a preponderance of the evidence, that defendant acted with the requisite purpose to intimidate because of race, color, gender, handicap, religion, sexual orientation or ethnicity.
II. HARASSMENT
A. Statutory Provision:
N.J.S.A. 2C:33-4d elevates the petty disorderly persons offense of harassment to a crime of the fourth degree “if in committing the offense, the defendant “acted with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, handicap, sexual orientation or ethnicity.”
B. Constitutionality:
The statute survived constitutional attack in State v. Mortimer, 135 N.J. 517 (1994). In particular, the Court held that the prosecution of defendant under the harassment statute did not violate defendant’s right to freedom of speech; nor did it impermissibly enhance defendant’s punishment on basis of motive. In addition, the Court held that the statute did not violate the Equal Protection Clause and could be interpreted in such a way that it was not unconstitutionally vague.
III. ASSAULT
A. Statutory Provision:
N.J.S.A. 2C:12-1e elevates the disorderly persons offense of simple assault to a crime of the fourth degree if the person acted with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, handicap, sexual orientation, or ethnicity.”
B. Severance:
In State v. Crumb, 277 N.J. Super. 311 (App. Div. 1994), the Appellate Division affirmed a trial court’s order severing a charge of assault under N.J.S.A. 2C:12- 1e from murder and weapons charges. In particular, the Court explained that trying the bias count with the murder count would compel the admission of inflammatory and highly prejudicial evidence of defendant’s racist beliefs.
- end of initial entry -
In yet another instance of synchronicity, Malcolm Pollack sent this comment just as I was preparing the above entry for posting:
I think it’s important to be clear about what the New Jersey statute under which Dharun Ravi was convicted does and does not say. (I say this not to diminish the horror of the totalitarian world we are entering, but just to clarify exactly where we’ve gotten to so far in terms of the persecution of thoughtcrime.)
Currently the law does not establish “bias intimidation” as a crime in itself, but only as an amplifier for other crimes. In the Ravi case, the allegations were of invasion of privacy (in Ravi’s own dorm-room!) and evidence-tampering.
That said, it is is nevertheless very much a thoughtcrime statute. As I wrote just now at my place:
The sole purpose of its existence, as with all hate-crime laws, is to punish certain kinds of thoughts. (You can see the New Jersey statute here.) The law goes even further: it convicts the accused even if he wasn’t harboring hateful thoughts, but his victim might reasonably have thought he was. So the law can convict a person based upon thoughts about thoughts! (Think about that.) If that isn’t thoughtcrime, nothing is—which is even more Orwellian, if you think about it.
So: we are not quite to the point where bad thoughts are punishable on their own—by then it will probably be too late to do anything about it—but we are already at the point where all that is needed is some other charge to prime the pump.
Posted by Lawrence Auster at March 20, 2012 04:51 PM | Send