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Bias crimes: what do haters deserve?

Susan Gellman has written the most useful and influential article to date on hate or bias crimes, and it is not my purpose in this brief essay to comment on all of the interesting issues she has raised.(1) Neither will I address the general issue of hate crimes and their justification (or lack of justification). I will instead--with some considerable skepticism--focus on simply one narrow but very important objection she raises to hate crimes as aggravated versions of traditional crimes. This objection can be put in the form of a simple syllogism: It has long been recognized as illegitimate for the criminal law to regard motives as material or defining elements of criminal offenses. Hate crimes--which punish people more severely when they act by reason of racial bias or hatred--are thereby making motives into material or defining elements. Therefore hate crimes are illegitimate.

I find this argument unpersuasive for a variety of reasons. First, I think it is simply false in any important (that is, not purely semantic) sense that the criminal law never takes account of motives as elements. Second, even if I grant that this is a true description of the criminal law to date, I will argue that it simply shows that the criminal law has been resting upon a mistake and ought to be improved by allowing motives sometimes to count in the way that Gellman wants to rule out. (I will, indeed, argue that a simplisitic adherence to the slogan "motives are irrelevant to criminal liability" sometimes pushes the law in irrational and even evil directions.) Finally, I will argue that--at least in some instances--the very concept of harm or injury cannot be understood independently of motives and other mental states. The textbook approach is to say that harm is one thing and the mental state that accompanied or prompted its causation is something quite different. I think it is a mistake to believe that this dichotomy can always be so sharply drawn. My bottom line, then, is simply this: Insofar as one's objection to hate crimes is based on the fact that such crimes render motives relevant to criminal liability, then one ought to drop one's objection to them.

Since dead is dead and hurt is hurt regardless of the

mental states that produced them, we might well wonder why the criminal law bothers with mental states at all. It does so, I think, for at least two reasons: crime control and retribution. When we focus on the utilitarian value of criminal law (its ability to control crime through deterrence and incapacitation), we are interested in mental states in part because they allow us to determine the dangerousness of the offender. When we focus on the value of retribution, on the other hand, we are interested in learning how blameworthy or evil or immoral the criminal is and thus how much punishment or suffering he deserves. The criminal law would probably lose our respect if it did not track, at least in an approximate way, our moral intuitions about desert. A mentally ill offender may, for example, be just as dangerous as (even more dangerous than) other offenders, but it often offends our sense of justice that such a person be severely punished. Given his limitations--limitations that are not his fault--he may not deserve punishment, or at least the same level of punishment as would be deserved by the sane offender. (Do not think, by the way, that we want to excuse the insane criminal for purely utilitarian reasons--for example, because he is non-deterrable. Though no special deterrence value is attached to punishing the mentally ill, there could be considerable general deterrence value in so doing. Such punishment would still be unjust, however, because undeserved.)

If it is proper to consider mental states because of their bearing on dangerousness and/or blameworthiness, then it would seem arbitrary to limit those mental states merely to intentions and purposes and not include motives; for surely motives have a direct and important bearing on both dangerousness and blameworthiness. It would seem irrational for the criminal law to ignore motives; and, as a matter of fact, it does not. Why, then, does Gellman think otherwise?

Gellman is, I think, misled in two ways: First, she thinks that sharp distinction can be drawn between intentions, reasons, purposes, and motives. Second, she is too quickly seduced by the common cliche that "motives are irrelevant to criminal liability"--a cliche whose commonality makes it no more true than other cliches about the criminal law that also. happen to be false--for example, "the criminal law punishes only for acts" or "ignorance of the law is no excuse."

When ordinary language draws no sharp distinctions between various term--when these terms are in fact used in vague and indeterminate ways--it is a mistake not to recognize this; for one will otherwise be tempted to impose an artificial and thus misleading precision on what is in fact muddy. Such lack of precision is, I think, present in much of our talk about most mental state terms. Sometimes we contrast motives with intentions--as in Hyman Gross's well-known example: "If a rich man has an ugly daughter, he is concerned about her suitor's motives. But a poor man with a beautiful daughter is concerned about her suitor's intentions."(2) At other times, we use the word "motive," not in contrast to the words "intention" or "purpose" but rather to describe a species of intention or purpose--what might be called a further intention or purpose. For example: I say, after Jones has fallen off the ladder, "He intended to get a box off the top shelf." If you ask, "What motivated him to do a stupid thing like that?" I might well reply, "He intended to get some money he had hidden there." Would you then say, "But what was his motive? I asked you what motivated him, and you waste my time talking about intention!" Surely you would not say this because, if you understand English, you will see that I have already answered that question in stating his further intention--a point I could just as well have made, if I had felt like it, by using the word "motive" or "purpose" or "reason."

With all this in mind, consider the specific intent crime of burglary, generally defined as the intentional entering of a dwelling after dark for the purpose of committing a felony therein. Does this final clause not mean exactly the same thing as "with the motive of committing a felony therein"? The criminal law, of course, never uses the word "motive." This is not, however, because of the deep and important reason that motives are different from intentions and purposes and thus irrelevant; but merely because of a superficial linguistic convention that a motive, immediately upon being made relevant to criminal liability, will be called either an intention or a purpose. Gellman claims that her opposition to criminalizing motives is consistent with her approving of such specific intent crimes as burglary. Would she be happy then with a hate crime statute that, using burglary as a model, made it a crime to assault another person with the purpose of subjecting that person to racial humiliation? If she would be, then I think her opposition to the ADL model statute is purely semantic--easily met with some modest redrafting. If (as I suspect) she would not be, then it is incumbent upon her to develop a more sophisticated account of just what she has in mind by the motive-purpose-intention-reason distinction.(3)

I should point out, by the way, that a rigid adherence to the cliche' "motives are irrelevant to criminal liability" is not harmless but can produce results that are (in my view) irrational and even evil-for example, in euthanasia cases. Recall the famous (or notorious) Barber case.(4) In that case, a physician--for humanitarian reasons--removed life support systems from a hopelessly comatose patient. He was convicted of murder. Clearly, the appellate court did not regard him as a murderer and thought it was deeply unjust to treat him as such--and clearly they felt this way in part because of his motives. Pledging allegiance to the slogan that motives are irrelevant, however, the court tried to find some other way to let him off. They came up with this: Barber is not a murderer. This is not because of his motives, however, but rather because murder requires an act and Barber did not act. Rather he simply omitted to continue useless life support--something a physician has no duty to do. But this rationale is patently absurd. For on this rationale Barber would also have to be acquitted if he unplugged the patient because he wanted to inherit under a life insurance policy that named him as the beneficiary, or even because he had always been morbidly curious to watch someone gasp in the agony of strangulation after the removel of life support, or even if he had been a total stranger who walked in off the street and pulled the plug just for the hell of it. For if Barber was not guilty because he did not act, then none of these other people is guilty because none of them acted either. But this seems very wrong. Are we not tempted to go easy on Barber in part because we suspect, given his motives, that he is neither dangerous nor evil--whereas the other people I have imagined clearly are both dangerous and evil? But if this is our thinking--if we really are (and in my view quite properly are) regarding motives as relevant--why not simply admit this up front instead of going through a torturous process of artificial reasoning just so that we can continue to prop up a misleading and dangerous cliche'?

Let me summarize my thinking to this point: If the criminal law has a legitimate interest in apportioning punishment to dangerousness and/or blameworthiness, then--since motives (in at least some senses of "motive") can clearly be relevant to both of these--motives should not casually be regarded as always and in principle totally irrelevant to criminal liability. We look to motives not to punish them as thoughts alone but as evidence about the ultimate character of the person being punished.(5) (Such matters are widely regarded as relevant in sentencing--particularly in capital sentencing, with its complicated lists of mitigating and aggravating circumstances, including circumstances of character and personality. What, for example, is a "hardened and abandoned heart" if not in part a commentary on motives? But if it is all right to consider motives in sentencing, is there any reason why in principle it would not be all right to consider them in the actual definition of the crime?)

Are hate criminal--those who assault or harass from motives of racial hatred--more dangerous or more evil than the run-of-the-mill assaulter and harasser? I don't know for sure, but it does not strike me as absurd to suggest that they are. This is an issue we should think about with care, however, and not simply brush away with some hasty assumptions about the total irrelevance of motives.(6)

Let me close with one final observation. Even if one wanted to base criminal liability totally on harm while ignoring motives and other mental states entirely, one could not do it. Human beings are creatures who, because of the complex nature of their social forms of life, relate to each other in ways that are to a great degree symbolic and communicative. Justice Holmes (who rarely said anything with which I would want to agree) was, I think, really on to something important when he noted that even a dog recognizes and cares about the difference between being kicked on purpose and being tripped over accidentally--the difference between being struck out of malice and simply being thoughtlessly bumped.(7) And if dogs care about matters of this sort, imagine how much more we humans do. The physical pain is surely not different in the two cases. What is different is that in the one case, but not in the other, a degrading and humiliating message is being sent and received, a message of contempt. (It is also, I think, a message of contempt that is the core evil in racial discrimination; and thus I would disagree with some of what Gellman says on that topic as well.) When I am assaulted, part of what hurts me--part of what constitutes the hurt or injury itself--is in many cases the motive of contempt or hate or simple lack of respect that I see behind my attacker's conduct. I am hurt not simply because my body aches but also because I am degraded, insulted, and humiliated--concepts that cannot even make sense if severed from all ties with motives. Thus, if I wanted to attack hate crimes from the perspective of motives, I would not oppose them because they involve motives and other assaults do not. Rather, I would argue that perhaps almost all assaults, whether racial or not, involve motives of humiliation and are thus evil to the same degree. I would at least want to explore this possibility.(8)


In preparing this essay I have been influenced by Douglas Husak's excellent general critique of the claim that motives are irrelevant to criminal liability. See Chapter 5 of his Philosophy of the Criminal Law (1987) and his Motive and Criminal Liability, 8 Crim Just. Ethics, Winter/Spring, 1989, at 3-14. (1) Susan Gellman, Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 UCLA L. Rev. 333 (1991). Ms. Gellman presented a version of her essay at a colloquium at the Arizona State University College of Law in 1991, and I functioned as one of her commentators. The present essay, concerned solely with her views on motives in criminal law and not with the many first amendment issues she raises, is essentially a transcript of those comments and preserves the informal style of the original. A proper philosophical discussion of motives would, of course, require much more space and the drawing of many more distinctions than this brief comment allows. My purpose here is mainly to play a gadfly role--to show that the cliche "motives are irrelevant to criminal liability" is not as clear as Ms. Gellman seems to think. It is perhaps not a bad slogan to help open debate on some of the issues involved in hate crimes; but, since there are important senses in which the slogan simply is not true, it should by no means be allowed to close debate. (2) H. Gross, A Theory of Criminal Justice 111 (1979). (3) The ADL model statute makes "reason" the operative word: "A person commits the crime of intimidation [an aggravated version of an existing criminal offense] if, by reason of the actual or perceived race, color, religion, national origin or sexual orientation of another individual or group of individuals, he violates Section -- of the Penal Code [insert code provision for criminal trespass, criminal mischief, harassment, menacing, assault and/or any other appropriate statutorily proscribed criminal conduct]. (4) Barber v. Superior Court, 147 Cal. App. 3d 1006,195 Cal. Rptr. 484 (1983). (5) For a discussion of the role of character in just criminal liability, see Arenella's Character, Choice and Moral Agency, in Crime, Culpability and Remedy 59-83 (E.F. Paul et al. 1990). An obvious point (often missed) is this: Just because character is relevant to criminal liability, it does not follow that this is the same as punishing for thoughts alone or character alone. The law is interested in character-as-revealed-in-actions, not in those aspects of one's character that one manages to keep under control and never reveal in behavior. That the law will punish you for revealing your hateful disposition in hateful actions still allows you to stew in your own private hatreds all you want. I think this distinction is nicely respected in the common linguistic tendency to refer to general passions and dispositions of character as motives only when they enter into the explanation of behavior. (6) It is easier to believe that race haters are generally more dangerous than that they are generally more evil and blameworthy than the average assaulter. Racism, like charity, usually begins at home--something we learn, as C.D. Broad said we learn all morality, at our mother's knee or some other joint. Thus racial haters, often coming from ignorant racist environments, may not be fully responsible for possessing and being motivated by these terrible and dangerous feelings. Might there not be a Delgado-like "rotton social background" defense to be made on behalf of some rednecks? (7) Cited in Prosser and Keeton on the Law of Torts 33 (W.P. Keaton et al. 5th ed.1984). Although Holmes's reference is to intention, I think the point is made equally well (indeed better made) if we think of motive. The dog does indeed notice and care about the on purpose/accident distinction; but the dog also notices and cares about, with respect to nonaccidental acts, the distinction between intentional acts that flow from love and concern and intentional acts that flow from other passions. As many dog owners know from experience, a dog will tolerate with patience a great level of intentionally inflicted pain if that pain is a part of a process (a medical process, for example) that the dog perceives as occurring as a part of a generally loving relationship with its owner. The dog will react with much greater negativity to even a much lower level of pain intentionally inflicted from a non-loving desire--for example, a desire to punish. To return to Holmes's example: a kick is necessarily an intentional action, and it is hard to imagine any decent motive that could prompt such an action. (8) For elaboration of the idea that the harm in assault is in part a function of the symbolic message being sent by the assaulter and received by the victim, see Forgiveness and Mercy by J.G. Murphy (Chs. 1, 3 and 5) and J. Hampton (Chs. 2 and 4) (1988).

Jeffrie G. Murphy, author of Retribution Reconsidered: More Essays in the Philosophy of Law (1992), is Professor of Law and Philosophy at Arizona State University.
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Title Annotation:Penalty Enhancement for Hate Crimes; response to Susan Gellman, UCLA Law Review, vol. 39, p. 333, 1991
Publication:Criminal Justice Ethics
Date:Jun 22, 1992
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