MM has a copy of the complaint. Turns out the newspaper reports were wrong: he hasn’t been charged with any counts of aggravated harassment, just two counts of fourth-degree criminal mischief (one for each Koran he flushed). As we saw yesterday, fourth-degree mischief is a misdemeanor. So how did Shmulevich end up with two felonies? Simple — they used the state hate crimes statute to elevate the penalty. You’ll find it here in section 485.05; criminal mischief is specifically identified as a covered offense in subsection 3. The provision ordering the court to enhance the punishment is in subsection 2 of section 485.10, right below the hate crimes statute. In pertinent part:
When a person is convicted of a hate crime pursuant to this article and the specified offense is a misdemeanor or a class C, D or E felony, the hate crime shall be deemed to be one category higher than the specified offense the defendant committed, or one category higher than the offense level applicable to the defendant’s conviction for an attempt or conspiracy to commit a specified offense, whichever is applicable.
Presumably, Shmulevich is looking at two Class E felonies now instead of misdemeanors. What’s the penalty for a Class E felony in New York? If the judge is feeling uncharitable, four years. At a minimum, per the same statute, one year.
Many distinguished authors, Muslim and non-Muslim, are dead or in hiding because of the words they have put on pages concerning the unbelievable claims of Islam. And it is to appease such a spirit of persecution and intolerance that a student in New York City has been arrested for an expression, however vulgar, of an opinion.
This has to stop, and it has to stop right now. There can be no concession to sharia in the United States. When will we see someone detained, or even cautioned, for advocating the burning of books in the name of God? If the police are honestly interested in this sort of “hate crime,” I can help them identify those who spent much of last year uttering physical threats against the republication in this country of some Danish cartoons. In default of impartial prosecution, we have to insist that Muslims take their chance of being upset, just as we who do not subscribe to their arrogant certainties are revolted every day by the hideous behavior of the parties of God.
It is often said that resistance to jihadism only increases the recruitment to it. For all I know, this commonplace observation could be true. But, if so, it must cut both ways. How about reminding the Islamists that, by their mad policy in Kashmir and elsewhere, they have made deadly enemies of a billion Indian Hindus? Is there no danger that the massacre of Iraqi and Lebanese Christians, or the threatened murder of all Jews, will cause an equal and opposite response? Most important of all, what will be said and done by those of us who take no side in filthy religious wars? The enemies of intolerance cannot be tolerant, or neutral, without inviting their own suicide. And the advocates and apologists of bigotry and censorship and suicide-assassination cannot be permitted to take shelter any longer under the umbrella of a pluralism that they openly seek to destroy.
I think he’s overstating the extent to which the prosecution is motivated by fear of rampaging Muslims. It’s not violent threats that has the D.A. keen to act, it’s another weapon in the CAIR arsenal — the perpetual, perpetually phony backlash against Muslims after 9/11 that supposedly makes them a vulnerable minority in need of extra protection from the kuffar. That sort of grievance lobby nonsense and not the prospect of jihadism is what’s motivating this, I suspect, although of course the two can and do work hand in hand, as we’ve seen with British Muslim advocacy groups demagoging acts of terrorism to pressure the government on policy.
The Supreme Court has already vetted and approved this type of penalty-enhancement hate crime statute on the theory that prejudice is a specie of a motive and it’s okay to look at motive during sentencing. So long as he’s being tried for some underlying, viewpoint-neutral offense — i.e., swiping someone else’s book and destroying it — it’s fair to hold his viewpoint against him in deciding punishment. Per the boldface part, Hitch worries that the next step in that logic will be to say that the viewpoint itself needs to be punished lest its expression incite violence in people within earshot. Are there any exceptions to the First Amendment that would allow laws like that? Indeed there are, although the “fighting words” doctrine as it stands is too limited to cover flushing a Koran. Maybe after Hillary gets to appoint some justices, that’ll change. In the meantime, I think what we’re looking at has less to do with fear of encroaching jihadism than prosecutors enforcing the laws unequally to protect “minority” religions. Some think tank should compare the number and type of hate crime complaints filed in NYC over the past five years to the number and type that were actually prosecuted. I bet you’d find some interesting disconnections.