When Is a Hate Crime Not a Hate Crime?

We don't know all the details, but that rarely prevents us from an expression of moral outrage. Nor will it in the case of José Sucuzhanay and the men who murdered him.

Oh, excuse us: who manslaughtered him.

Here's what happened:

On Dec. 7, 2008, Sucuzhanay, 31, and his brother, Romel, 36, who was visiting from Ecuador, had been drinking at a church party and later at Mexican restaurant. The two were holding on to each other as they walked home along Bushwick Ave. at 3:30 on that fateful Sunday morning.

Suddenly, they were brutally attacked by Scott, 26, and his co-defendant Keith Phoenix, 30. Another jury is still deliberating the fate of Phoenix.

According to witnesses at the scene, after yelling, "Check out those f----ts over there," the defendants pulled up in an SUV at a stoplight and jumped out, the vicious assault began.

While Romel Sucuzhanay was able to escape the attack with minor injuries, José Sucuzhanay suffered a beating on the head with an aluminum bat and a glass bottle.

The attackers, witnesses said, left him for dead on a Bushwick sidewalk. "F---ing Spanish!" they yelled to the fresh-faced Ecuadoran as he lay bleeding on a Brooklyn street.

He lingered for five days at Elmhurst Hospital and died the day before his grieving mother arrived from Ecuador. He leaves behind two young daughters.

By all accounts, José Sucuzhanay was a good man. But the thugs who savagely beat him did not care. They did not know him - they only knew they hated José Sucuzhanay because he was Latino and they thought he was gay.

The Daily News article, quoted and linked above, expresses some ire that in their verdicts (of two men so far, with a third waiting), the jury decided that this wasn't a hate crime. After all,

"Beating a man to death with a baseball bat and a broken bottle while screaming anti-immigrant and homophobic epithets is clearly a hate crime," said Ana María Archila, co-executive director of Make the Road New York
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True enough. But what angers us even more is that the convictions were for manslaughter, which carries lower penalties than murder. This, frankly, mystifies us.

"Murder in the second degree," as we understand it, usually refers to something like this:

1) an intentional killing that is not premeditated or planned, nor committed in a reasonable "heat of passion", or

2) a killing caused by dangerous conduct and the offender's obvious lack of concern for human life. Second-degree murder may best be viewed as the middle ground between first-degree murder and voluntary manslaughter.

It seems pretty obvious that this is what happened. They didn't plan to kill the guy; they planned to beat him savagely -- dangerous conduct. He just happened to die as a result of what they were doing -- lack of concern for human life.

"Manslaughter," however, means unintentional killing which takes place in circumstances that would cause a reasonable person to become emotionally or mentally disturbed .... For example, Dan comes home to find his wife in bed with Victor. In the heat of the moment, Dan picks up a golf club from next to the bed and strikes Victor in the head, killing him instantly.

So what are the "circumstances" that caused Scott and Phoenix to become emotionally disturbed"? Surely not the fact that they were in the middle of brutal assault -- that was the crime itself, which they had instigated solely of their own accord. So what then?

Apparently, we are to believe that it was the fact that they had seen a pair of Hispanic men holding onto each other. This, alone, appears to be a "circumstance" which can legitimately be said said to have so "disturbed" them that it effectively mitigated their crime. And that's insane.

For decades, African Americans have complained bitterly, and justly, about the crime of "driving while black," for which many are stopped by the police. It would seem that the law has just recognized a new offense under a related statute: embracing while male. Or Hispanic.