The Killing of Sunando Sen Was Not a "Hate Crime"

The death of Sunando Sen was tragic. For people who ride the subway everyday in New York City or other cities, the second incident of a subway pushing in a month is also frightening -- an Erika Menendez could be anywhere. I have heard at least a few friends in New York mention to me that of late they have started standing further back on platforms for fear of being pushed. 

One thing the subway pushing is not is a hate crime. It is true that Ms. Menendez said some hateful things about Muslims after being picked up by police, but I would argue that because she is so evidently disturbed, her statement is immaterial.

People who defend the use of the hate crime label for this tragic death argue 1) that it matters from the point of view of potential victims of other hate crimes: we have to watch out in case someone else does the same thing. They also argue 2) that her particular fixation on Muslims (and Hindus) comes out of a climate of racial and religious intimidation. She may be mentally ill, but anti-Muslim sentiments are so readily available that there was, in effect, a "ready made" group for her to hate.

Let us deal with point (1) first. To me, what's clear from this killing is that the issue should be the way the U.S. handles severely mental ill people in general. There is no evidence that Ms. Menendez had a history of racial or religious animus (and as anyone who has ever followed a case related to hate crimes surely knows, this matters). Meanwhile, there is ample evidence that she was a violent and severely disturbed person, and she might well have targeted anybody at all; her targeting of Mr. Sen might well have been arbitrary. It's also probably worth mentioning at this point that her comments were actually pretty incoherent: was she targeting Mr. Sen because she thought he was a Muslim? Why then did she later say she hated both Hindus and Muslims? This is a very unusual pairing to pick as targets. (While one can easily imagine hatred of either religious group individually, it's unusual to have both without the additional presence of generalized xenophobia. And yet in her statement to police, Menendez didn't mention anything about immigrants, dark-skinned immigrants, etc.)

Along those lines, here are a few paragraphs from the New York Times article dealing with Ms. Menendez's mental history:

There were ample warnings over the years concerning Ms. Menendez. 

In 2003, according to the police, she attacked another stranger, Daniel Conlisk, a retired firefighter, as he took out his garbage in Queens. 

“I was covered with blood,” Mr. Conlisk recalled on Sunday. “She was screaming the whole time.” 

Just two months earlier, Ms. Menendez was accused of hitting and scratching another man in Queens. She was also arrested on cocaine possession charges the same year. 

Since then, according to friends and people familiar with her record, she has been cared for at mental health facilities in Manhattan and Queens as her problems worsened. 

Between 2005 and February this year, the police responded five times to calls from relatives reporting difficulties in dealing with Ms. Menendez, reportedly stemming from her failure to take certain medication, according to a law enforcement official who was not authorized to speak publicly about her medical history. In one of these instances, in 2010, she threw a radio at one of the responding officers, the official said.

 “She has been in and out of institutions,” another law enforcement official said, speaking on the condition of anonymity.

Within the past year, she was discharged from Bellevue, according to a person with knowledge of her medical history. (link)

Note the random nature of her targets, particularly the guy (who I'm presuming is Caucasian) who was violently attacked while just taking out his trash.

People more experienced with this subject than I am have also pointed in this direction following other attacks by mentally ill people where a "hate" dimension was involved. In June, 2011, Eugene O'Donnell of the John Jay College of Law, published the following comments in the New York Times:

It is impossible to ignore the mental health dimension in the Holocaust Museum attack and an earlier assault at the Federal Reserve headquarters by James von Brunn. There may also be serious mental health issues with Scott Roeder, the killer of Dr. Tiller.  

There is a gaping hole in our mental health infrastructure which will not be easy to fill, but needs urgent examination and action. Far too many potentially dangerous people are left to fend for themselves. Even when there are concerned family members or friends in their lives, these guardians are often worn out from trying to help, or do not know where to get dependable care.

We continue to leap at the chance to declare actions criminal despite the fact that attacks like this museum shooting are rooted in an extremely irrational and bizarre world view, and are thus outside the scope of traditional criminal notions of “punishment” and “correction.” And of course, even where the criminal justice system is utilized, extended post-release mental health supervision needs to explored, in some cases for the whole life of the ex-convict. (link)

In short, what Sunando Sen's death reminds us is that we need to be focused on the American mental health system, particularly the metrics and regulations governing how potentially violent individuals can be involuntarily committed to mental health institutions. (This was also apparently an issue in the truly horrible shootings in Newtown Connecticut a few weeks ago.) This is not a matter of simple criminality because people this disturbed are not committing "crimes" based on rational motives -- which are the basis of any theory of criminal law. As Professor O'Donnell points out here, the concepts of "punishment" and "correction" are also inapplicable in such cases.

Attempts to label the killing of Sunando Sen a hate crime imbue a sense of rationality and motive to Ms. Menendez that does not exist, if her prior history is any indication. The labeling of Sunando Sen's death as a hate crime also weakens and cheapens the real problem of violence motivated by hatred of religious and racial minorities.  It gives the appearance that community advocates may be overplaying their hand, which, just a few months after the ghastly shooting at the Gurdwara in Oak Creek Wisconsin, they surely do not need to do.

There is a legitimate question about whether the general cultural climate in the United States at present makes it easy for mentally deranged individuals to pick up on it and deploy anti-Islamic or anti-immigrant sentiments and use them as channels for violent and anti-social behavior (see point 2 above). However, if this is a cultural problem, it likely needs a cultural, rather than a legal, solution.

Americans might be justified in feeling a bit afraid riding the subway after events such as the killing of Sunando Sen. But South Asians in particular are mistaken if they feel this attack is directed at them. It really affects all Americans, and will continue to do so as long as the American mental health system remains broken. 

Taking "Looting" to A Whole New Level: Vaman Ghiya

There's the makings of a nice suspense novel in a recent New Yorker piece on one of India's greatest -- and most evil -- contemporary antiquities smugglers, Vaman Narayan Ghiya. Ghiya operated a transnational smuggling network out of Jaipur, which included three Swiss shell companies that bought and sold smuggled vast quantities of Indian antiquities, ultimately so the priceless works could be acquired by London auction houses -- and "legally" sold at Sotheby's and Christie's.

Ghiya, who was extremely cautious in his business operations, was brought down by a dedicated police officer, Anand Shrivastava, who essentially dedicated years to learning about the workings of the international antiquities market in order to better understand the criminal side of it. Almost miraculously, Ghiya wasn't able to bribe his way out of prison, nor was bail allowed in his case -- and his case is currently in process. Just to give you a sense of scale, here's what the police found when they raided Ghiya's house and his various warehouses:

Then Superintendent Shrivastava and his men searched the house, spending hours rummaging through the elegant rooms. Behind the wood panelling of Ghiya’s private study, the officers discovered a set of secret cupboards, which held hundreds of photographs of ancient Indian sculptures: graceful stone figures of the deities Vishnu, Shiva, and Parvati and Parvati’s elephant-headed son, Ganesha; Jain Tirthankaras and Chola bronzes; dancing goddesses with many arms and melon breasts, festooned with delicately rendered ornaments. The photographs were color snapshots, and the objects pictured sat outdoors, in patches of grass or mud. Many evidently had been roughly pried away from temple walls and were missing limbs or heads. The police also discovered sixty-eight glossy auction catalogues from Sotheby’s and Christie’s in London and New York.

This stash seemed to confirm Shrivastava’s suspicion that Vaman Ghiya operated one of the most extensive and sophisticated clandestine antiquities rings in history, and that he had grown rich in the past three decades by smuggling thousands of Indian antiques to auction houses and private collectors in the West. The police found no sculptures in Ghiya’s home. But, in the days that followed, Shrivastava’s men raided half a dozen properties that Ghiya owned around Jaipur, his farm outside the city, and various godowns, or storage facilities, in Mathura and Delhi. They discovered antique paintings, swords and shields, marble panels, stone pillars, three hundred and forty-eight pieces of sculpture, and a dismantled Mogul pavilion the size of a small house. (link)

Ghiya was able to operate for so long partly because he had a legitimate crafts shop as a front in Jaipur. Ghiya was also helped by India's notoriously "flexible" customs system:

Ghiya’s handicrafts business had many hallmarks of a front. India’s Antiquities and Art Treasures Act, passed in 1972, is a particularly stringent measure, which requires that any privately owned work of art that is more than a hundred years old be registered with the government. Since it is generally illegal to export such objects, to be an antique dealer in India with an international clientele is also arguably to be a criminal. But Indian customs officers are required to check only ten per cent of any large shipment of exports, and smugglers frequently bury a single priceless statue in a giant case of bric-a-brac. (link)

Alongside Customs, Ghiya's business was facilitated by India's underfunded Archeological agency, the Archeological Survey of India -- which has never even fully indexed all of India's major archeological treasures, much less employed staff to protect and maintain them. Ghiya also had an ingenious system, where he would commission the production of fakes of particularly important works he stole, and have the ASI officially certify that the fakes were in fact fake. He would then attach the "This is not an original" slip to the original he had stolen, so there wouldn't be a problem at Customs.

Of course, part of why Ghiya's crimes are particularly troubling is the fact that many of the stolen religious sculptures were in fact still being actively worshipped:

For religious Hindus, images of the gods are not merely representational; they can be inhabited by the deity they depict. The faithful anoint the statues with oils, camphor, and sandalwood, garland them with flowers, and make offerings of food, incense, and music. (The word “idol,” though largely abandoned by Western academics because of its perceived pejorative connotation, remains in use in India to describe these objects.) When, in 1986, the Indian government sued for the return of a twelfth-century bronze Shiva that had been looted from a village in Pathur, it did so on behalf of the offended god himself: Shiva was named as a plaintiff in the case. “In the south, people still don’t tell lies in Shiva’s temple,” Ashok Shekhar, a former state arts and culture official in Rajasthan, told me. “These are very hotheaded deities.”

This aspect of Hinduism seems not to have bothered Ghiya, who was more concerned about how much his western buyers were willing to pay than whether his actions constituted desecration on an extaordinary scale.

Of course, Ghiya is not the first to pillage India's treasures -- this goes back to the British Raj (and perhaps before; but let's not get into Vijayanagar again...). But this is fresh pillaging, and in some ways worse: what's striking is that western buyers, which includes museums such as the Metropolitan Museum in New York, the British Museum, as well as smaller museums (the Cleveland Museum) continued to buy "newly discovered" antiquities from India even after it was made perfectly clear that the export of such antiquities was forbidden by modern Indian law. Are any of these museums planning to return the stolen antiquities now that Ghiya has been arrested and his network exposed?

Sotheby's London at least has been deeply affected by Ghiya's arrest. Ghiya's contact at Sotheby's was a dealer named Peter Watson, who was forced to resign once it became clear that he had been extensively engaged in acquiring smuggled goods from Ghiya. Eventually, it spread: Sotheby's entire antiquities wing in London was forced to shut down.

The law itself might be part of the problem. Japan, which has also had its share of looting and pillaging, has what might be a better system:

The antiquities law has many critics. “The law as it stands doesn’t benefit anybody,” said the scholar and curator Pratapaditya Pal, who came to the United States in the mid-nineteen-sixties and built several renowned collections, including Norton Simon’s. The law is self-defeating, Pal believes, because it makes no distinction between a masterpiece and any generic antique. The result is a black market that the government lacks the resources to control. Pal prefers the model adopted by Japan, which identifies art works of national significance and keeps them in the country, while allowing everything else to be sold on the open market.

Yes -- taxes could be extracted on the sale of works deemed not of national significance, and those taxes could be directly channeled to the ASI, which would then be better able to protect and maintain the artifacts that are of national significance.

And there are many other issues raised by this article, which I unfortunately don't have time to get into at present. I would strongly recommend readers to check out Patrick Radden Keefe's whole article -- journalism like this pretty much justifies my New Yorker subscription.