That opening on the court

[pecunium]

I've not been paying a whole lot of attention to it.

What I do know, is I'd really rather not have one of the usual suspects get the nod. We have a court made up of Ivory Tower Academics. This is bad. The Court is asked to address all sorts of things, which have both legal aspects, and practical aspects in the real world. It behooves us to have justices who have spent some time in the real world.

Used to be that was the case. O'Connor had been a politician. Frankfurter had been an Ass't Secretary of war, and a prosecutor, before he became a professor at Harvard. Earl Warren was Governor of California, William Douglas was Chairman of the S.E.C. and Lewis Powell President of the U.S. Bar Association.

Powell was appointed to the bench in 1972. He was the last justice to have served in private practice. Hugo Black was the last to have been in the House (he was also one of the few justices one could sometimes call. If it was a first amendment case, related to free speech, the gov't lost his vote) He died in 1971.

There have been 108 people appointed to the court (two of them resigned as justices, and were later appointed chief justice). 40 of them were not judges before they were appointed to the court.

In the past 30 years this has changed. The path to the court has narrowed. Go to a Name Law School. Clerk for a Justice, teach at a Name Law School. Get appointed to the Federal Bench, make friends; hope.

I don't think this has been for the best. The court doesn't reflect the makeup of the nation.

Where are the present justices from? The East Coast (seven of nine). Where did they go to School? Harvard (six of nine). What did they do before they were appointed to the court? Sat on Appeals Courts (nine of nine). About half the population is female, one of the justices is. Something like 20 percent of the population is hispanic, none of the justices are.

This is a nation of immigrants, I don't think we have any justices who are closer than grandparents to an immigrant forebear.

These are all things to ponder. The law is not some mystical thing which happens in classrooms and courts, it's the nitty-gritty of streetlife (right now the court is looking at two cases about life sentences for minors; someone may manage to bring a 14th amendment claim to the differential treatment of crack vs. powder cocaine). It's what determines who can marry whom (someone might manage to revisit the ruling which outlaws polygamy... the underlying reasoning [that the disparity of men and women made it socially destabilising to have one man taking more than one woman] isn't what it was).

It shapes what sorts of contracts we get, the nature of our stock markets, and the way we do business with each other. The law defines torture.

We live in a nation, "planted thick with laws," and ought to be glad of it. We also ought to have arbiters of those laws who appreciate just what the decisions they make about them does to the people who have to live inside them.

Comments

[desert-vixen.livejournal.com]

I will be honest. I would like to see a female appointee, because I don't believe that having 1 woman out of 9 is enough. That's just me. I also will not support a candidate who is NOT pro-choice.

Great post.

DV

[pecunium.livejournal.com]

I'd really like to see a woman, who has some labor background, because none of the things I'm really writing about, make a bit of difference in terms of gender.

I want to have a court which is diverse. Right now what we have are White guys from the east coast who sat on the appeals court.

Big whoop.

Re: That opening on the court

[eagle]

In the absence of context, I was rolling my eyes a bit at the headlines earlier today about how some in Congress are asking the President to broaden the search, figuring it was just more political code for not liking the current short list. But PBS NewsHour did a pretty good job of putting it into context, and then this finished the job.

So yes. This. Thank you for putting it into words.

Re: That opening on the court

[antonia-tiger.livejournal.com]

It could still be that political code, but it could backfire on those using it.

[cakmpls.livejournal.com]

I agree entirely. And you even included a phrase from my favorite quotation on the law.

[tlatoani.livejournal.com]

Not only that, a disproportionate number of them are Catholic.

[fidelioscabinet.livejournal.com]

I hear rumblings about Sonia Sotomayor, who's a federal judge now.

[jennem.livejournal.com]

While I think you make good points, I also think its important to point out the holes:

Sandra Day O'Connor went to Stanford. In addition to being a politician, she was also a state judge on the Arizona Supreme Court. Frankfurter went to Harvard and graduated with a stellar record. He also taught at Harvard Law School. Douglas went to Columbia and he taught at Yale. Powell graduated from Washington & Lee with his law degree, but he later attended Harvard for his Masters in Law. Warren went to Berkley (a Top 15 law school instead of a Top 5), but he was pretty much appointed by Eisenhower as a "THANK YOU FOR NOT RUNNING FOR PRESIDENT AND WHOOPING MY ASS" present.

Moreover, Ginsburg attended Harvard and Columbia Law Schools. She was one of the few women in her class at the time, and became the first woman to serve on both the Harvard and Columbia Law Reviews. She also litigated for the ACLU. Scalia's father was an immigrant. He worked at Jones Day (a Big!Firm) early in his career, and he worked for the government. Roberts worked in both the private and public sector before becoming a judge. Kennedy took over his father's small-law practice and he worked in the public sector (outside of being a judge).

While I certainly think we can get off the East Coast Circle Jerk, and perhaps branch out in selecting people with a variety of experience, the reality is that most of the exceedingly bright people that enter law attend one of the Top 5 law schools in this country, and four of them are located on the East Coast. Moreover, most people that become experienced in appellate work live on the East Coast because that's where most major appellate work is conducted (in addition to SCOTUS, you have the Federal Circuit, the D.C. Circuit, and the 2d Circuit on the East Coast). And, there is some diversity of experience already sitting on the Court.

Most people who become judges work a bit in the private sector, a lot in the public sector, and when they become a Judge and they maintain that role. Most of them went to highly ranked law schools because they're incredibly smart people. Can smart people go to other schools? Sure. I'm at a Top 15, not a Top 5. And, there are people in my class that could hold their own against the smartest in the Top 5. But, at a certain point, there is a difference between the classes that attend places like Harvard, and the classes that attend places like Texas Tech Law School. When you tack on the fact that most people that are interested in being judges are also interested in teaching (since appellate work is highly academic to a large degree) and/or working in the public sector to begin with, the range of experience is going to be tuned to those interests.

Personally, I think Obama will appoint 1) a woman, and 2) a Hispanic. I think he's cognizant of the lack of representation in that area on the Court. But, the female Hispanic (or at the least, the female) justice that he picks will probably have attended a Top Law School, will probably have some experience as a judge, and will probably have worked a tiny bit in the private sector and a lot in the public sector before becoming a Judge.

[ckd]

I'd nominate Michael Newdow just to watch the right-wing "OMG ATHEIST" head explosions.

[pecunium.livejournal.com]

I didn't think those were holes. My complaint isn't the schools (or the teaching) per se, it's the insular sameness of the people we have on the bench. Appeals courts aren't the best places (IMO) for supreme court justices. That's rare air, and the problems they see aren't the problems most people face.

Then there's this: the reality is that most of the exceedingly bright people that enter law attend one of the Top 5 law schools in this country, , which assumes facts not in evidence. Show me the stats which support the idea that "most" of the "exceedingly bright people" go to those top five.

You can't, because it's not so. The people who get into those schools are the ones with the very specific drives, and the ability to hit the benchmarks which get them into the feeder schools; the money to pay for those feeder schools, and the luck to be whatever it is the board selecting that years cohort is looking for.

I've been watching the courts, and the decisions, and the people sitting on them for some 25 years. I don't like the brahministic way we have taken to treating someone who went to Harvard, clerked for a Justice,and then to Academia (look at the choice of words you used, the classes that attend places like Harvard, and the classes that attend places like Texas Tech Law School. : WTF?, this isn't about the right spoon for the inter-course sorbet, this is about strip-searching eight yraar old girls because they were near a drug bust, and what defines "reasonable burden" when deciding access to medical care for women). Some of that comes, I know, from knowing a couple of people who've done that. They are brillian guys, but they don't have an understanding of the real world. They've never lived in it.

The law isn't engineering. There is no single best case; add precedent, and the need to gain consensus on an opinion, and the room for fixing error into the nation (Dredd Scot, Plessy v Ferguson) is too great.

It's not just that there are lots of brilliant people out there who won't go to Harvard, Yale, Princeton, Columbia, etc., it's that so small a pool means a narrower way, and style, of looking at the law. Which will tend to have a schoolhouse solution; and that hurts everyone.

Part 1

[jennem.livejournal.com]

Then there's this: the reality is that most of the exceedingly bright people that enter law attend one of the Top 5 law schools in this country, , which assumes facts not in evidence. Show me the stats which support the idea that "most" of the "exceedingly bright people" go to those top five.

You can't, because it's not so.

I can show you the admissions criteria and the data related to the individuals that are accepted into those institutions, including GPA and LSAT. Those aren't perfect indicators (I'll be the first one to admit that), and of course there are exceptions to the generalization, but if you want a brilliant legal mind, chances are, you're going to have a better chance at finding one at a Top 5 school than a 4th Tier law school.

I've been watching the courts, and the decisions, and the people sitting on them for some 25 years. I don't like the brahministic way we have taken to treating someone who went to Harvard, clerked for a Justice,and then to Academia (look at the choice of words you used, the classes that attend places like Harvard, and the classes that attend places like Texas Tech Law School. : WTF?, this isn't about the right spoon for the inter-course sorbet, this is about strip-searching eight yraar old girls because they were near a drug bust, and what defines "reasonable burden" when deciding access to medical care for women).

That assumes that the only kinds of cases SCOTUS deals with are cases that deal with no-brainer issues like strip-searching a little girl in order to find ibuprofen and justifying it on the basis of the 'war on drugs.' (You don't even want to get me off on the tangent of strip-searching children in public schools because it pretty much makes my brain melt into a raging fit of WTF!) SCOTUS also deals with very complex legal issues that require an ability to understand, analyze, and de-compress involved legal doctrines. And, yeah—generally speaking, I'm going to trust someone's analysis of a conflicts of law issue more if they went to a school that employed people capable of teaching it and its intricacies better. I'm full willing to admit that generalizations are generalizations. There are always going to be exceptions. You can find a brilliant legal mind at Texas Tech Law School. I have no doubt of that. You're just going to find more brilliant legal minds to choose from at a higher ranked school, which is why a lot of appellate court judges come from those schools. That's just the way the admissions cookie crumbles.

Re: Part 2

[jennem.livejournal.com]

My complaint isn't the schools (or the teaching) per se, it's the insular sameness of the people we have on the bench.

They aren't "insular" and the same. Which is the entire issue. Ginsburg was one of the lone females in her classes at Harvard and Columbia. She also served as counsel for the ACLU regarding women's rights issues. Scalia is the son of an immigrant and a Catholic. Kennedy held numerous public service positions before being appointed to a Circuit Court bench. Stevens was heavily involved in anti-trust issues, lived through the Great Depression, saw his father lose everything as a result of embezzlement and corruption, and later served essentially as a special prosecutor related to corruption issues. Thomas is the descendant of slaves, grew up in an impoverished area, and grew up Black in the South. Souter grew up on a farm. Breyer grew up Jewish in California during and after WWII.

Are Roberts and Alito essentially cookie-cutter models? Sure. I'm not that impressed with either of them. I'm not that impressed by George W. Bush (another cookie-cutter). But, by asserting the other seven were "circuit judges" and thus lived in a vacuum that we should get out of ignores everything they did in their lives before they were appointed a circuit judge and essentially got them to that position in the first place. It also ignores all of the experiences they had before they were appointed.

The fact that Ginsburg made it to the "rarefied" position of "female circuit judge" isn't a disadvantage. She experienced things (like oppression and fighting for the poor) before she became a circuit judge. And, I'd take a Ginsburg any day over the week over a lacking-cronyism-Harriet-Miers-Clone. I might not like Thomas, and I might, generally speaking, think that he's entirely wrong on almost all of the issues that are important to me as a person and as a citizen of this country, but he doesn't have a cookie-cutter background either. Nor, does Scalia. If your entire point is that a person's life and experiences shapes the way s/he thinks about something and gives them a taste of reality, then you need to look at that person's entire life. Not, just the fact that the last thing that happened in their career was that they were appointed circuit judge.

[urox.livejournal.com]

Choosing based on race doesn't seem appropriate if there aren't 20% of that race to choose from in the pool. I would only think a race based choice made sense if I thought that there was inherent racial discrimination in the supreme court. People should be chosen on their qualifications and impartiality rather than their race. I don't have a problem that there isn't an Asian on the Court and we make up 5% of the population. Asians have less than 1% of the federal appointments. Hispanics hold 3.7%. Understanding the "community" has nothing to do with the law at the supreme level.

However, I do feel that there needs to be more female representation in the court (I will out myself and say that yes, I am female) specifically because men are deciding what can and cannot be done with a woman's body (related to abortion) without ever going to intimately feel the repercussions of their own decisions.

[pecunium.livejournal.com]

But some of that is "glass ceiling" stuff. The sort of thing which leads employers to say they don't think they can afford to hire promote members of "x" because there aren't any exemplars.

Part one

[pecunium.livejournal.com]

You miss a point. The thing isn't that any one of them were on the appellate bench... it's that all of them were.

The top schoolsare insular, they do breed a sameness. It's from tradition. It's from being told they aare the best and the brightest. It's from tenure (which I am all for). It's from being small. How many professors of ConLaw does Harvard Have? Which Chapbooks do they use? How often do they change them?

How long does a professor last? (Alan Dershowitz has been at Harvard, as a full-prof all my life, forty two years).

That leads to schools of thought. Shape the branch and you shape the tree. Diversity matters, not just of gender, but of comprehension. When the same materials were studied, taught by the same profs, with the same conceptions of the law (which, as you know is more quantum mechanics, than general phsyics, there are tendencies, but nothing absolute) similar understandings will result.

As for no-brainers... that strip searching was deemed legal. So the "no brainer" aspect of the cases which seem easy seem to be; not so much. We have justices writing opinions which say women can't be trusted to make decisions for themselves about what do do with their bodies; apparently because they are too emotional. How do a majority of the court come to that conclusion (because I don't recall any complaints with that line of reasoning in concurrence)?

The argument about LSAT and GRE assumes facts not in evidence. What the top five get to do is pack the house. They have density, but, as my first platoon sergeant said, that's an indicator, not a proof.

He was looking at us, and telling us we were the best and the brightest (we were; for what that's worth).

He went on, "You were selected from the top ten percent of the Army. Then you were tested to see if you had any talent for languages. You did, and you do. Even so, apptitue does not equal ability."

He was right (he had reason to be, we wereen't his first platoon, and he'd been through the same school). 1/3rd of us went to other languages, or other fields. That was before we went on to our follow on schools. All told less than half the people who start out for the jobs we were looking at made it.

The same isn't true of law school. First, the hurdles are more than the tests. The largest single group at Yale Law... Yale grads. Same for Harvard, and Cornell, etc.

Which puts a financial burden on people. Even if you don't spent the 80-100 grand to go to the same school you want to hit for law school, there's 60-100 grand to find for tuition to that top five school. Then one has to find room and board.

It's not a pure meritocracy either. Yes, one has to work, but getting through Law School is a lot more certain than getting through college; and a LOT more certain than making it as an interrogator for the army. It's not that the best and brightest don't go into those other fields, it's the way things are run (because it's not as if Harvard has an abnormally high pass rate).

Part two

[pecunium.livejournal.com]

The grading scheme assumes the vast majority of students will pass: b) In classes with over 30 JD and LLM students enrolled, the recommended distribution of grades is: 37 percent Honors; 55 percent Pass; and 8 percent Low Pass. That's a reccomended pass rate of 100 percent, with almost 40 percent getting, "honors".

Graduatin honors (cum laude, magna, and summa cum) are given to 31 pecent of the class. In event of ties, the numbers are increased.

The Bar Exam doesn't impress me much either. It's a test. Tests can be taught, and the cachét of places like Harvard comes, in part, from how high their bar pass rate is. It's a positive feedback loop.

I find it amusing that the Big Five are seen as some sort of special place, where the normal rules of institutions are suspended, but places like, "Texas Tech" are seen as being prone to them.

Why? Because we have fetishised them. Even when the fruits of their labors (look to see how many of the big players in the financial meltdown, from the present CDF/CDO problesm, to Enron, and yea, even back to the S&L problems of 20 years ago, all had Harvard MBAs) show them to be like-minded thinkers.

I would be shocked if there weren't samenesses in those who went to the same schools. Diversity of experience means more to me than of gender and race. Condoleeza Rrice was a middle-class kid from a well-to-do family. She went to Ivy League Schools. In the end those tell more about what she did than her being female, or black.

The same is likely to be true of those we appoint to the bench.

Apptitude, does not equal ability.

Some things about Law School

[waterlilly.livejournal.com]

First of all, what's important to keep in mind about why one would go to one of the prestige schools is not that you learn anything different from what you learn at a fourth-tier school (you don't, legal principles are legal principles). What you get from a top tier school is that you learn it from the guy who wrote the textbook who is acknowledged as the expert in that field of law. Unfortunately, that could mean he's a shitty teacher, but that's not important. What's important is that you went to Harvard and studied under Prof Bigname, and that means you might have a chance at not just BigLaw but possibly also BigCourt. :)

Also, law school grading? Crazy shit. The "curve" is all-important. If a law school prof gives an exam that's too easy, it's a disaster. If all the students in the class get between 95-100% of the questions right, then the poor SOB who got the 95 gets a D. The guy who got the 100 gets the A. Everyone else gets a scattering of the grades in between, depending on what forced curve the school is requiring of how many people get what grade and how many people have to fail. And keep in mind that this is on an exam that is almost certainly an essay that is graded extremely subjectively, and furthermore this exam is the only grade you get in the class. No real ongoing feedback. No chance to find out you've gotten lost. One grade, and even if you rock the exam you could get a D.

Meanwhile, what gets you the A's is making sure you parrot exactly what the law professor wants you to parrot to him. The people who get the good grades are the ones who think the most like the professor. They tend to go on to become law profs themselves. This tends to perpetuate a certain kind of theoretical view that doesn't do well with contact with real clients, but that's probably neither here nor there.

I guess what I'm trying to say is that the credential "Top Grades at Harvard" doesn't impress me like it used to. I don't actually think that makes someone a better or brighter lawyer than some of the people I went to school with or the people I work with as colleagues every day. It's all kind of a crap shoot if you ask me.

Also, I sure wish that all law schools did their Cum Laude honors that way. I see it as a way to inflate the value of the degrees the top tier grads get. As it is, in the top 15% of my class, I pretty much got a diploma. No complaints, I love what I do and I wouldn't trade it for a judgeship or a life of 80 hour weeks working for BigLaw. But I'm just saying, if that's their criteria for honors then I'm not impressed with that either.

[lwj2.livejournal.com]

Egad, Terry.

You're openly suggesting that a justice of SCOTUS have experience other than behind a bench in a courtroom.

Next thing, you'll be adovcating the appointment of some nobody prosecutor in D.C. who worked his/her way through G.W. Law at night whilst working as a cop during the day.

I warn you, sir, you're approaching heresy.

;)

[bifemmefatale.livejournal.com]

But what about the fact that white justices are deciding cases on race or with racial implications (like immigration matters) without ever feeling intimately the repercussions of their decisions? And the percentage of Hispanics in the US population is a good bit more than 3.7%.

[urox.livejournal.com]

Europeans are white and immigrants. My husband is a permanent resident. I've never liked any cases dealing with race because I think that crimes are crimes no matter what the race or motivation. If x-non-white race person kills a white person, I have never heard that being classified as a hate crime.

I intended to say that Hispanics hold 3.7% of the federal appointments, not the population.

[bifemmefatale.livejournal.com]

I intended to say that Hispanics hold 3.7% of the federal appointments, not the population.

Yes, I understood that. I was merely trying to point out that as Hispanics are a growing segment of the US population, perhaps they deserve representation on the court.

[pecunium.livejournal.com]

If x-non-white race person kills a white person, I have never heard that being classified as a hate crime.

I wish I had the citation to hand, but there have been such cases (and there have been white on white bias crimes).

The issue wih bias crimes is that they are about more than just arson, or graffiti, or murder. They are about terror. There was a case in Pennsylvania where the killers (I can't say murderers, they were just acquitted, on all counts) said,

"Isn't it a little late for you guys to be out?" the boys said, according to court documents. "Get your Mexican boyfriend out of here."

Racial slurs followed, and Ramirez responded. Punches were thrown, and Ramirez fell to the ground. Then Ramirez used his cell phone to call Arielle and Victor Garcia for help...

By this time, Eileen Burke, a retired Philadelphia police officer, had stepped out of her home after hearing Arielle Garcia's pleas to stop the beating.

Burke recalled hearing one final, ominous threat as the teens ran. "They yelled, 'You effin bitch, tell your effin Mexican friends get the eff out of Shenandoah or you're gonna be laying effin next to him,' " she said.

That's the core of bias crimes. They are meant to intimidate, to terrorise. The perpetrators weren't charged with intentional murder; which cuts to the core of the, "crimes are crimes" argument. They were charged with third degree (which is, I believe the least grade of murder). They were also charge with an enhancment, such as we add for things like "lying in wait", or murder for hire... why? Dead is dead, right? I don't think there is a US jurisdiction which doesn't add a charge if the offender knowingly attacked a cop

We make the eenhancemnent when someoene kills a cop, because it's an attack on the social order. So are bias crimes. When someone tells the world, they killed someone because 1: he was "x" and 2: he was here, and 3: all the rest of "x" better get out of "here", or they will be killed too; society needs to say, No... you don't get to do that.

We make distinctions about intent all the time. Degrees of murder, theft by fraud (fraud is a pure intent crime. If I don't intend to fool you, then I can't be guilty of fraud. If I tell you there is a 90 percent chance of losing your money, but a 20 percent return if we get it right, that's legit. If all I do is tell you, "this is a sure thing, and a 20 percent return is in the bag" that's another altogether).

The crime isn't hating people. It attacking them for it. It's terrorising them for it.

[pecunium.livejournal.com]

Exactly. I don't think the court, per se, needs to match the makeup of the population. Trying to make it so will lead to frustrations (and different sorts of whining by various groups. I'd like to see no one worrying about who gets on the bench; I'd also like someone to buy me studio space, a big house and a pony).

What I do think the justices of the court need more experience with the law at a nuts and bolts level. The classroom, where they learn it, the lectern; where they teach it, and the appellate bench; where they implement it, are all places where theory rules the day.

Practice; be it small or large, litigation or criminal, private or public, is a world apart.

Theory is a lovely place, everything works in theory. But theory is a strange thing, let it out into to the wild (as with the idea that corporations are people Santa Clara County v. Southern Pacific
Railroad Company [118 U.S. 394 (1886)]) and all sorts of strange things happen.

I don't think they will stop, just because the justices have a broader experience of the law, but I think they will be different.

I am sure that having all the justices, with the same experience of the law, will lead to more of the same.

[urox.livejournal.com]

I'm definitely in support of discriminating degrees of murder. But I don't think that murder based on association with a group should up the charges. Planning to murder someone just because you want them dead is still planning. Whether someone plans to murder because they're a different race or because they were humiliated by their target shouldn't matter. Both are motivated by hate. The latter isn't covered by hate crime. So why should there be a special designation for the vector of the definition of hate crimes being the motive?

I do think they should have been charged with intentional murder as the text you sited clearly shows intent. Not the part about being Mexican, but the laying next to him.

I am not sure I'm being very clear in my text, but what I am intending to say is that racial bias can be a motive. But I don't see why it should change the severity of the charge. If there's an annoying kid at school and at the end of the year a couple of kids plan to beat him up, then they should have the same premeditated charge as if they were planning to beat him up if he wasn't annoying and of a different race. I just hate that when something like the former happens, then if there's a different race, it seems that everyone wants to automatically jump to a special distinction of a hate crime. I think the message should have been that you don't beat up kids. Does the fact that he's annoying make it less the perpetrator's fault? That's like telling a woman she was partially at fault for being raped because she was wearing a sexy dress.

[pecunium.livejournal.com]

Because the effects are different.

There are two crimes (offenses against society) going on. One is the simple one.

The other is the harder one.

Terrorism is a crime, yes?

It's a crime about intent. Says so right in the law. Bias crime is an intent crime. First degree murder is an intent crime (or, if you will, a "state of mind" crime). Most crimes require intent (the mens rea).

Bias changes the nature of the crime, because it changes the scope of the damage. Would you be comfortable living in a place where being "x" meant you could be singled out for abuse, and it would be ignored (oh, no big deal, just another wop, if they don't like it they ought to move)?

For a more detailed explanation (and probably more clearly than I can explain it), try Orcinus

Truth be told, I used to agree with you. I no longer do. It's not the same.

[urox.livejournal.com]

That is an excellent link and I thank you for it. I think there are some things that I am still in disagreement with, but it gives me a lot more to think about and consider.

I hope I'm not beating a dead horse

[pecunium.livejournal.com]

I did some poking about, and thought you might be interested to know that the FBI reports the second largest class of bias crimes is crimes against white people, and the second largest category in crimes of religious nature is crimes against Christians.

The law is equal in it's language. It doesn't protect me because of who I am (straight, white, and male) but it defends me against being victimised for what someone else chooses to do.

If someone attackes me because they think me gay, or of mixed-race (oneof my step-fathers was black), that's motive, and that's what triggers bias crime enhancements.