Surprise. A Lexis-Nexis search isn’t foolproof as it might not turn up cases that were tried by jury and not appealed, i.e., where there were no rulings issued from any bench recounting the facts of the case, but you’ve got to figure the ACLU would have climbed aboard and left a record somewhere if anyone had been charged with Bible-flushing. As it is, and as I hinted yesterday, the problem here has less to do with the statute than with how the statute is being selectively enforced by the D.A. and NYPD. Prosecutors have wide discretion in choosing whom to charge and whom not to charge; absent extreme proof of bias, there’s not much a court can do to make them be more evenhanded. That’s why the next Lexis-Nexis search should be to see if any other Koran desecrations have been prosecuted or if this is the first. Do they have a pattern of arbitrary enforcement, in other words? If so, it’s good political leverage even if it’s not legally actionable.
Speaking of which, here’s an interesting tidbit from the article:
“We reported it initially as an act of vandalism, then the police hate-crime unit came over and decided to pursue it as a hate crime,” said Chris Corey, Pace University spokesman, adding that he was “not at liberty” to discuss the investigation or how Mr. Shmulevich was implicated.
My impression was that Pace, under pressure from Muslim students, had pressed the cops to charge him with a hate crime. Sounds like it was the cops themselves who decided on that. Perhaps someone might think to ask American messiah Mike Bloomberg whether he agrees with his police department and D.A. that putting a book in a toilet warrants a year or two in the state pen. That’s the good news here: because the bias is in the enforcement, not the statute itself, it whittles down the number of people who are responsible for it substantially, which makes political pressure considerably easier.
I’ll leave you with Eugene Volokh’s take on New York’s hate-crime statute. He’s making a subtle point about the Supreme Court’s logic in finding hate-crime laws constitutional: assuming the Korans belonged to Pace University, then the victim of the crime is Pace, not any Muslim or Muslim group. Is it enough that Shmulevich had a discriminatory motive in committing a crime or, as the Court seemed to suggest, must the discrimination lie in who he chose as his victim?
But it doesn’t necessarily follow that the law should be free to increase the punishment not just because the criminal was discriminating in choice of victims, but because the criminal was hostile to some other person based on that person’s religion, religious practice, sexual orientation, or race — which often means that the criminal simply disapproved of some group, even when the target of the crime was not discriminatorily chosen. Nor does it follow that the law should be free to increase the punishment because the criminal was trying to insult some group.
Potentially, it’s even more subtle than that. Pretend Shmulevich swiped a Koran not from Pace but from a Muslim student — but not because he wanted to destroy something owned by a Muslim, rather because he simply wanted to make a statement about Islam by destroying a Koran and that was the nearest one available. Would that constitute a hate crime? He’s not choosing his victim out of discriminatory motive, i.e., because he wants to hurt a Muslim; he’s choosing his victim because he’s got a copy of the Koran handy, whether he’s a Muslim or not. In other words, how close does the nexus between crime, victim, and motive have to be for a “hate crime” to have been committed?
Update: In case you missed it last night, here’s Alan Colmes showing he has more sense on this issue than Bill O’Reilly.