COMMENTARY | COLUMNISTS | GEORGE HAWKINS

Must judges become mind readers?

Based on several recent court decisions and the passage of some laws, it would seem lawmakers believe judges and prosecutors can read minds. One example of this is hate crimes.

Wikipedia defines hate crime laws as those that “protect against…” crimes “…motivated by enmity or animus against a protected class. Although state laws vary, current statutes permit federal prosecution of hate crimes committed on the basis of a person's protected characteristics of race, religion, ethnicity, nationality, gender, sexual orientation, gender identity and disability.” Prosecutors are supposed to figure out the motive. Absent admission, that might require mind reading.

Sometimes the action itself becomes admission, especially when there is no evidence that a perpetrator made remarks reflecting enmity or animus. That is, if you punch a member of a protected class in the nose and you are not a member of that particular protected class, you might be considered to have committed a hate crime.

Motive sometimes may be determined not by mind set, but by the fact that one of the people involved is a member of a protected class and the alleged bad guy is not.

There are many situations in which the issue of intent can affect the punishment. Prosecutors are often called upon to divine the mental attitude of the bad guy. That is tough enough. One court has expanded that skill to include reviewing expectations of a third party far removed from and with absolutely no knowledge or control over something that may have happened.

In the opinion of two members of a three judge panel in New Jersey’s appellate court, people who send a text message may be held partly responsible if the recipient responds to that message while driving and that driver has an accident.

“We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving,” the judges said.

One part of the justification for this ruling was that sending a text was like a passenger putting reading material in front of someone who is driving. In the latter case it is obvious that the passenger knew what was going on. In the case of texting from afar, the investigators, prosecutors and, sometimes, the judge have to possess some sort of special mental acuity.

I lack this particular skill. Frequently I can’t tell what my wife is thinking, even when she tells me in plain English.

In Texas, a state with a record of severe punishment for severe criminal acts, a judge has ruled that a 16-year-old kid was so insulated from the consequences of anything he did that he did not deserve prison for killing four people.

Called the affluence defense, the boy’s attorney argued his client had been so protected by his wealthy parents he really didn’t recognize that driving drunk and being involved in an accident could result in his own punishment.

While not necessarily agreeing with that, the judge in this case concluded this kid, insulated from life by rich parents, would not benefit from prison time. Instead, the judge ruled his parents could pay for treatment that, presumably, would help him understand that killing four people and rendering a fifth paralyzed is wrong.

Critics say the judge must have been able to read this kid’s mind. How could the boy not know that what he did was a horrible act, worthy of punishment? How could the judge know what this boy might have understood? When a judge makes a sentence like this one, it encourages similar behavior by others.

Some folks opposed to the death penalty say it is not a deterrent. The fact that so many convicted murderers try to avoid that finality suggest otherwise. It is certainly not a deterrent if people who might otherwise be subject to a lethal injection believe they will never be sentenced to death. The same applies in cases like those I’ve mentioned.

The boy in the Texas case made permanent the consequences of those who were killed and paralyzed, but there is just one lesson to be learned from the affluence defense. The lesson is that money can sometimes insulate you from suffering serious consequences regardless of your behavior and that kids with wealthy parents are not responsible for what they do.

Hawkins is retired after 35 years as a construction industry association manager. He was a broadcast reporter and news anchor in Denver. As a Navy officer, he saw action in Vietnam in the River Assault Squadrons and is the recipient of a Silver Star and Purple Heart.

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