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Punishing hate and achieving equality.

I Introduction

Many people continue to believe (and the law increasingly agrees) that wronging others while, or as a result of, hating them ought morally to expose the wrongdoer to an increased or enhanced punishment--a penalty aggravated over what he or she ought otherwise to receive. This belief appears to be rooted in the presumption that hate crimes constitute a distinctive form of moral wrongdoing. Recently, the argument has been advanced that the distinctive wrong that obtains when crimes are committed from racial or other forms of animus consists in the violation of a conception of equality or fair treatment central to our political morality. This is the claim that I explore. It is not, I argue, as easily defended as is commonly supposed. This fact is significant, for it undermines one argument that has seemed compelling as a justification for hate-crime laws.

Most hate-crime laws are structured as penalty enhancements. The precise formulation is somewhat complex, but the basic idea is that hate-crime laws add an additional layer of criminality "on top" of ordinary crimes, whenever those ordinary crimes are done from hateful beliefs and desires. Consider the following two cases:

Case One: Jones decides to commit a robbery. Jones leaves his apartment and steps into the street. Jones targets Richard Roe because Roe is gay and Jones despises gays and wants to hurt them. Jones shoves Roe into a corner, threatens him with a gun, takes one hundred dollars from him, and leaves the scene. Jones is later arrested and charged with the hate crime of bias-motivated aggravated assault.

Case Two: Smith decides to commit a robbery because he wants money. Smith leaves his apartment and steps into the street. Smith targets Richard Roe because he is the first person he sees. Smith shoves Roe into a corner, threatens him with a gun, takes one hundred dollars from him, and leaves the scene. Smith is later arrested and charged with aggravated assault.

Since, in Case One, Jones targeted Roe because of his sexual orientation, existing law would permit (or perhaps even require) that he receive a greater punishment, other things being equal, than would be meted out to Smith in Case Two.

Hate-crime penalty enhancement schemes have been the focal point of extended debate, much of which has coalesced along two discernible dimensions. One set of discussions, the principal focus of earlier contributions to this journal, (1) concerns whether hate-crime statutes are inconsistent with constitutional standards because they proscribe thoughts or ideas deemed offensive, such that those who wish to send hateful messages would be unconstitutionally prohibited from doing so by operation of hate-crime legislation, (2) or that they would be punished merely for instantiating certain character traits. (3) Critics have insisted that enhanced punishments for hate are indefensible on their face, since such laws impermissibly punish persons for entertaining certain thoughts or beliefs. (4) According to James Jacobs and Kimberly Potter, "recriminalization or sentence enhancement for the same injurious conduct when it is motivated by prejudice amounts to extra punishment for values, beliefs, and opinions that the government deems abhorrent." (5)

Some of these critical arguments are obvious nonstarters: for example, the claim that bias-crime laws improperly treat "thoughts" as a defining element of crime. As has often been observed, the law routinely makes an actor's thoughts a necessary element of criminality, at least if by "thoughts" we mean something like the person's beliefs and intentions, goals, and desires. (6) Critics of "punishment for thoughts" concede this much but insist that no one's punishment should turn merely upon his entertaining certain beliefs. In one sense, of course, that is simply not what is happening: hate criminals are not being punished simply for holding beliefs, but for acting upon them. The objection cannot be that an offender's reasons for action may never be an element of criminal conduct--for it all depends upon the nature of the reasons and how the law is structured to take them into account.

Related objections to hate-crime legislation have maintained that punishing hate wrongly seeks to penalize a person's motives, and thereby the values expressed in and through one's behavior. (7) But motives are commonly thought to be punishable, once we see that "motive" is often used to pick out such legally relevant features of practical activity as further intentions and purposes. Some, but not all, motives are intentions of one kind or another. When ! say, for example, that O.J. Simpson was moved to take Nicole's life, I am speaking of "motivation" in the narrow sense to mean just that O.J.'s state of mind satisfied the mens rea or mental element required of anyone convictable of a homicide offense. To speak of O.J.'s motives in this way is just to say that he acted with the intent to kill. More broadly, by contrast, the claim that FBI spy Robert Hanssen was motivated by greed refers to Hanssen's purpose or further intention--that is, the intent with which his intentional acts (of espionage) were done. Lastly, ascriptions of motive may refer, not to intentions at all, but to desires and beliefs. So, to say that the killer's motive was "to start a holy war against a despised minority" is just to ascribe certain desires and beliefs to the actor. Dan Kahan correctly concludes that "opponents of hate crime laws can't persuasively argue ... that hate crime laws are a bad idea because they take values into account in a way that the rest of the law does not." (8)

The second of the two dimensions of critical commentary on hate crimes asks whether imposing an enhanced penalty upon wrongdoers who commit them can itself be justified. This is a large question, and several justificatory strategies are possible. My aim here will be confined to arguing against one type of strategy. That strategy is to claim that those who commit crimes of hate are inherently more deserving of punishment than those who do not: hate crimes are distinctively worse, relative to what the offender deserves, than similar crimes committed without animus directed at a protected group. I canvass several attempts to defend this claim and argue that none are convincing. I then consider the claim that hate crimes are distinctively worse than ordinary wrongs in that they transgress against a basic norm of equality, argue that this claim is also unsustainable. Since hate crimes are not inherently morally worse than similar, non-hate crimes, to inflict greater punishment on hate criminals is a violation of a basic demand of penal justice (9): that punishment must at least not be disproportionate to the offender's degree of wrongdoing. (10) I conclude that since existing criminal doctrine provides the legal equipment necessary to capture most forms of hate violence without resort to the flawed mechanism of penalty enhancement, existing laws should be restructured to avoid reliance upon them.

II Supervenient Criminality and Penalty Enhancements for Hate

We can usefully begin with a brief summary of how hate-crime laws are generally conceived and formulated. In a few jurisdictions, free-standing criminal prohibitions have been devised that penalize specific forms of hate-related conduct, such as institutional vandalism (erecting a burning cross or spray painting a swastika on a church or synagogue with the intent to cause alarm or resentment). (11) But an understandable desire to reach more broadly and deeply into the realm of hate-violence has moved many jurisdictions to adopt the more expedient solution of creating whole categories of hate crimes by grafting them onto existing prohibitions. The majority of state statutes (and, on the federal side, the Hate Crimes Sentencing Enhancement Act) define hate crimes as higher level versions of "ordinary" crimes and impose enhanced penalties for such violations. These laws share a common structural feature in that they impose a greater penalty on those actors whose conduct is criminal when they choose their victims in a certain way. (12)

Hate crimes are instances of ordinary crimes done hatefully or prejudicially, and are ranked at a higher level of wrongdoing, such that enhanced penalties are imposed when the offender has targeted a victim "because of" or "by reason of" race, religion, sexual identity, or gender. (For simplicity, I shall simply use race as a proxy for these other traits.) In this way, hate crimes are, in effect, supervenient upon the standard crimes that "parallel" them. Suppose that X chooses to beat Y because of Y's race. X is convictable of a hate crime if and only if X's conduct fulfills the definition of the parallel crime (say, assault) and, additionally, satisfies the "by reason of race" element, thereby increasing the amount of punishment to which X could be subjected over and above that which he would receive for committing the enumerated parallel crime. The additional quantum of punishment is here imposed for wrongful conduct done in a prejudicial manner. (13)

The law says that to commit a crime of hate is to expose oneself to enhanced punishment. The majority of existing state and federal hate-crime laws enhance the punishment of an offender by increasing both the minimum and maximum permissible sentences that can be imposed for the conduct in question. Under the U.S. Federal Sentencing Guidelines, as amended by the Hate Crime Sentencing Enhancement Act, a finding of bias motivation results in a mandatory "three level" increase in the minimum possible punishment. (14) Sentencing authorities continue to retain some discretion to adjust sentences to other factors--individual circumstances, features of the crime committed, and desired social goals--within the space afforded the judge as bounded by the end-points of the stipulated sentencing range. But a finding of bias motivation necessarily shifts the entire sentencing range of deserved penalties upward (in some cases doubling the original sanction).

III Culpability, Harm, and Enhancement

How might the claim that Jones (in Case One) ought to receive a steeper punishment than Smith (Case Two) be adequately justified? What follows are some possible answers. (1) Hate-motivated violence has a higher threshold of deterrability and thus requires an additional element of deterrence (as compared with parallel conduct not arising from hate), and this because it is more likely to recur or more likely to provoke others to further, retaliatory acts. (2) Those who act from hate are more dangerous than those who engage in the common run of crimes (or engage in crimes for more common reasons, such as the desire for money), such that enhanced penalties in these cases are tied to some greater disutility that necessarily obtains when such factors are present. (15) In contrast, those who would kill for money, it might be thought, require more punishment because they pose a greater danger, for example, since they are more easily persuaded to kill. (3) Penalty enhancements for hate ensure that crimes against vulnerable groups are not under-investigated by the authorities. (4) Penalizing hate affords an additional layer of protection to those who are less likely to defend themselves or to complain. (16) (5) Enhanced penalties for those who act with hate may be erected upon a presumption similar to that used in other cases. Penalty enhancements are imposed under state and federal law based upon the nature and status of the victim--for example, where the victim of a crime is a child, an elderly or disabled individual, or a pregnant woman. (17) Presumably, these enhancements reflect a legislative judgment that such persons are of greater vulnerability.

As a review of the now extensive literature on hate crime reveals, none of the foregoing claims is easy to sustain. It is not clear why it is antecedently more likely that I will commit future robberies because I hate my victims, rather than that (for example) I desire their money. Nor is it obvious that poverty, say, is a lesser inducement to criminality than hate. Equally uncertain is precisely what it means to say that Richard Roe (Case One) is a vulnerable victim. Are all gays equally vulnerable in ways that distinguish gay people from those who are not gay? How is Roe more vulnerable when assaulted (by Jones) under the description "gay" than when attacked (by Smith) as merely "a convenient target"?

According to Frederick Lawrence, the offender's culpability--the "criminal" features of his or her state of mind--may be enhanced where, for example, they reflect the actor's degree of deliberateness or purposefulness. (18) The claim here is that hate crimes often evince a degree of brutality or reflect a level of planning such that the calculated and methodical nature of the crime is especially apparent. All of this, Lawrence argues, makes the hate criminal more dangerous and more blameworthy. Lawrence links this claim with the further contention that the seriousness of hate crime is tied to the disproportionately severe harms that it inflicts: "IT]he culpability associated with bias crimes makes these crimes more severe than parallel crimes" for "bias crime offenders are more likely to cause harm." (19)

Admittedly, a variety of factors might seem to distinguish hate crimes from other offenses, for example, that they are excessively brutal, involve torture, or that they tend to be committed by multiple offenders, often acting in a gang. (20) Of course, it is not difficult to imagine that a jury might justifiably find that an especially brutal or gruesome assault or gang-rape demonstrates that the perpetrator is particularly depraved or wicked; and therefore there is nothing counter-intuitive about punishing such hate crimes with severity and more severely than less vicious acts. Yet, if we agree that actors like Jones cause additional harm to their victims in any of these various ways, why should not that then become the ground of their enhanced penalty, as distinct from the hostile or prejudiced beliefs which moved them to act? The claim of disproportionate harm seems to entail the proposition that Jones merits greater punishment as a function of the actual harm caused by its brutality, and not of the hatred or bigotry that figured in his reasons for action. If this is so, then the ground for the penalty enhancement would have no necessary connection to the prejudice with which Jones picked out Roe.

This last point can perhaps be generalized. There seems to be little reason to think that those who act from hateful beliefs and desires invariably are more dangerous, more brutal, or more likely to victimize the defenseless than those who act from other sets of beliefs and desires. And there is little evidence that bigotry inevitably gives rise to intentions to bring about worse harms than would otherwise obtain as a consequence of the bare intention to harm, nor that the intentions of bigots, as contrasted with unprejudiced criminals, are necessarily more firmly held or reflect greater purposefulness. If we accept these claims, then what, if anything, remains to be said in favor of enhanced sanctions for hate?

IV Penalizing Hate and Promoting Equality

Proponents of hate-crime penalty enhancements have arguments more nuanced than the foregoing. It might seem that Jones brings about no greater harms than does Smith, but only if we conceive of the impact of such wrongs within a narrow frame of reference. Hate crimes, proponents argue, are wrongs committed within a social context that informs their meaning and significance. Viewed in this more expansive way, Lawrence argues, "the bias crime offender violates the equality principle, one of the most deeply held tenets in our legal system and our culture." (21) A similar view is expressed by Lawrence Crocker:

The meaning of a racist act to the perpetrator is bound up with his understanding of racism. To act from a racist motive is in part to ratify that history, to make it one's own through a concrete act. The racist perpetrator is carrying forward in some part the program of racism ... [T]o act out of racial motivation is akin to entering into a league with the devil. (22)

Hate crimes are worse, according to Crocker's analysis, because they endorse the history of racism or homophobia--they carry forward a program of discrimination and oppression, making it the actor's own through his criminal acts.

Unfortunately, neither Lawrence nor Crocker spells out precisely how hate crimes transgress a norm of equality. How then might hate crimes be conceived as attacks upon a legally protectabte interest in equality? One way in which a commitment to the value of equality may constitute a legal wrong arises when entitlements, resources, or other social goods are distributed on morally inappropriate grounds--when, that is, they amount to forms of unlawful discrimination. Could hate crimes be conceived as discriminatory wrongs? Central to existing hate-crime law is the "by reason of race" language found in most of the statutory schemes. The predominant conception or specification of this notion says that victimizing a person "by reason of" her race, say, is meant merely to criminalize the grounds upon which the offender's target is selected, imposing additional penalties just in case he or she has acted upon a discriminatory criterion of victim selection. As regards law-enforcement, this way of thinking about hate crime has the twin advantages that it casts a relatively broad net while also retaining a high degree of administrative efficiency: all that is needed to secure a conviction is evidence that the victim's race was a necessary condition for singling her out. On the other hand, this manner of conceiving hate-crime laws embodies requirements that are, at once, unusually strong and peculiarly weak. Strong, because it is a necessary condition of an enhanced penalty that the actor have employed a discriminatory criterion of victim selection, intentionally picking out the victim based on that person's membership in a particular group or class. (23) At the same time, the discriminatory targeting conception is also quite weak, since discriminatory targeting is treated not only as a necessary but also a sufficient condition of an enhanced penalty: according to this view it it would be enough to subject me to greater punishment because I chose my victim discriminatorily.

V Discrimination and the Wrongfulness of Hate

Hate crimes cannot, I argue, properly be regarded as discriminatory wrongs. Construing hate crimes in this way faces two kinds of initial objections. First, viewed as penalties imposed for discriminatory wrongs, existing laws are over-inclusive with respect to the supposed underlying aim of punishing hatred, for not all offenders who target discriminatorily are moved in the relevant way. Discriminatory targeting cannot be sufficient for establishing that the actor was moved by malicious hatred. Dontay Carter, a black man, committed a string of robberies targeting white men as his preferred victims, stealing their cash and credit cards. Carter claimed that he targeted white males because he believed (falsely) that all white men are wealthy. (24) Not only does the discriminatory selection model fail as a sufficient condition for punishing hate in this way, it appears to draw distinctions between cases in ways that do not appear to track morally relevant features. Suppose Carter targets a gay man who weighs less than 100 pounds; and suppose he chooses this victim because he believes (again falsely) that gay men are always small, weighing in at under 100 pounds. Here Carter would be subject to a penalty enhancement despite the falsity of his beliefs; but had he selected the same victim because he believed that all people who weigh less than 100 pounds are easier targets, (and, he wrongly thinks, all gay men are in this category) he would not be subject to a stiffer penalty.

To clarify and develop this last point, compare our original Case One with the following:

Case Three: Jones decides to commit a robbery. Jones leaves his apartment and steps into the street. Jones targets Richard Roe because Roe is gay and it is the case that Jones believes (falsely) that all gay men are weaklings. Jones shoves Roe into a corner, threatens him with a gun, takes $100 from him, and leaves the scene. Jones is later arrested and charged with the hate crime of bias-motivated aggravated assault.

In both Cases One and Three, Jones is subject to a penalty enhancement for hate, even though only in Case One is his conduct referable to hateful beliefs and desires. This is just to say that people who commit crimes can target their victims discriminatorily for reasons having nothing to do with hatred or bigotry. (25)

In response to this worry, it might be claimed that cases such as Carter's are likely to be rare, and that the marginal injustice of subjecting similar defendants to enhanced penalties could be tolerated on grounds of administrative efficiency: it is worth the risk of exposing people like Carter to punishment for hate in order to gain the efficiencies of casting as wide a net as possible with the object of deterring hate violence. But this reply runs afoul of a second and more fundamental objection to the interpretation of hate crimes as discriminatory wrongs. To explicate this objection, imagine that the proponent of hate-crime penalty enhancements insists that the morally salient feature of Cases One and Three is the discriminatory impact of Jones's conduct. Discriminatory conduct is often thought to be wrongful because it causes a disproportionate burden to fall upon members of certain groups. According to this reasoning, the claim that Jones merits a greater penalty than he would otherwise receive for committing the same underlying crime is grounded in the fact that he disadvantages gays by contributing to the problem that a disproportionate number of criminal harms falls upon them.

This last argument is seriously flawed, though the nature of the flaw is not immediately obvious. Anthony Dillof has argued that enhancing penalties for hate crimes mistakenly assumes that persons like Roe have a "right not to be discriminatorily harmed." (26) This notion is incoherent, Dillof insists, since it must rest upon asserting a "protectable interest in the thoughts of another" (27): the distinctive wrong suffered by Roe at the hands of Jones consists in the violation of Roe's interest that Jones not entertain homophobic thoughts. Dillof is certainly correct that the idea of such an interest is a strange one, but his overall diagnosis misses the mark. Hate crimes are not discriminatory wrongs for the reasons Dillof identifies; rather, hate crimes are not crimes of discrimination because we cannot sensibly speak of criminal wrongs being perpetrated non-discriminatorily.

To develop this last point, let's reconsider Cases One and Two. Jones targeted Roe because Roe was gay; Smith did not. Both Jones and Smith acted with the same legally relevant state of mind: each had the conscious purpose--the intent--to rob. Let us assume that other features of the two cases (the force used to shove Roe around; the gestures with the gun; the significance of the monetary loss) are all equally weighted. Given these stipulations, ought Jones to receive a stiffer penalty than Smith? Some simple solutions can quickly be dismissed. It might be thought, for example, that a greater penalty for Jones follows from the fact that, intuitively, Jones did "more things wrong" than Smith: Jones committed a robbery and did so prejudicially; Smith did only the former. Hence, Jones merits a greater penalty. But this solution is silly. After all, it could equally well be said that Smith did as many things as Jones: he committed a robbery and did so "greedily." With respect to the relevant underlying or parallel crime, the same act-description applies to both: each performed the same set of movements and each possessed the requisite state of mind to make them convictable of aggravated assault. Of course, Smith intended "to rob someone," whereas Jones intended "to rob a gay man," and these differences in the scope of their respective intentions are tied to differences in their ulterior aims and beliefs. Yes, (the reply persists) but Jones acted with two wrongful intentions, Smith with only one: Jones intended to rob and to rob a gay person. This reply also fails--since we have no clear way of counting intentions (absent at least some defensible criterion to individuate them). Nor is it clear why the mere number of intentions with which a person could be said to be acting could be dispositively relevant: surely it is what I intend to do to you, not how many ways what I intend to do can be parsed up, that matters from the standpoint of determining what I deserve in the form of punishment.

The real question, then, is this: Can the fact of discriminatory targeting per se, apart from any otherwise potentially relevant facts about the victim (say, his age) or about the offender's conduct (say, its degree of brutality) justify a claim about the amount of punishment the offender merits? Plainly, it can only if the salient difference between the two cases can support a claim about differences in what is deserved. But the only relevant difference to which the discriminatory targeting model is sensitive is the discriminatory impact itself, and it is hard to see how such an impact could itself be wrongful except on the assumption that we somehow take the distribution of criminal harms, as such, to be morally relevant. But it is clear that we do not believe this to be the case. To see why, we can return to Case Two and imagine that Smith gives the following defense. Smith has a long record of assaults and robberies, let us suppose. Yet despite this, Smith argues, he has at least this much social conscience: He (unlike Jones) seeks to victimize people in such a way that the criminal harms he brings about do not fall disproportionately upon any one group. He might claim, for example, to be an "equal opportunity" robber, meticulously employing, as his only basis of victim-selection, a standard of pure randomness: perhaps, he says, he will rob the first person he sees wearing the color red or the third person he meets after exiting a subway station. He victimizes anyone, regardless of ethnicity, religion, or sexual orientation. Smith then makes an unusual move of offering his non-discriminatory record in extenuation, insisting that his punishment should be less severe than would be merited by someone who did not strive to target his victims so impartially.

Now, it might be thought that holding Jones's discriminatory victimization to his discredit is consistent with failing to reward Smith for non-discriminatory targeting of victims, since Smith's lack of discriminatory behavior is just what the law already expects--it conforms to the baseline assumptions built into existing law. But imagine a stronger version of Smith's plea. In this version, Smith introduces evidence showing that his criterion of victim selection is actually anti-discriminatory: using demographic data to pick his victims, Smith ensures that he targets both sexes, and members of various religious and ethnic groups in precise proportion to their percentage representation in the total population of the community in which he resides. Smith shapes his criminal conduct, in other words, in such a way as to bring about a certain distribution of criminal harms across racial, gender, and religious lines.

Of course, no court would contemplate mitigating Smith's punishment even on a showing that he victimized people in an anti-discriminatory manner; after all, Smith's case bears no obvious relation to any of the morally defensible mitigating factors standardly recognized at law--for example, that the defendant was a minor, or that he acted under duress or by virtue of mental illness. (28) To this Smith could reply only that whatever precise theory of excuse unites these factors and justifies their moral relevance in mitigation should also acknowledge that "anti-discriminatory criminality" is somehow to the actor's moral credit, just as criminal defendants often do claim and are given moral credit for, say, the absence of a prior record of violent offenses or for having played only a minor role in the commission of an offense. (29) Yet even these rejoinders are unconvincing, and the explanation is simply that, unlike the absence of a prior record, we attach no moral significance, per se, to eliminating disproportionate victimization by bringing about a more equitable distribution (or, indeed, any particular distribution) of criminal harms throughout the population; and, hence, we attach no moral significance to efforts aimed at bringing about such a state of affairs. The nature of the distribution produced by the robber's activities does not morally transform his attacks into "better" conduct. But if this is true, then it is difficult to see how the disproportionate impact of discriminatory choice of victim, as such, could make Jones's conduct worse, that is, such that he deserves additional punishment for it. After all, if distributional considerations matter in the one case, it seems they ought also to matter in the other.

Alon Harel and Gideon Parchomovsky have recently defended the claim that hate crimes are discriminatory wrongs by focusing, not upon criminal harms themselves, but upon the social good of protection against crime. (30) According to this view, protection against crime is a good to be distributed on broadly egalitarian grounds. Some individuals are more vulnerable to crime, the authors observe, in that they have a comparatively higher expected costs of crime, that is, "a greater sensitivity to harm and a greater likelihood of becoming a victim." (31) Because of disparities in vulnerability, protection from harm, if it is to be fairly distributed, must be allocated differentially by levying enhanced penalties on those who target persons who are especially vulnerable in these ways. According to Harel and Parchomovsky, particularly vulnerable individuals are entitled to greater protection from the criminal law. The authors reject a thoroughgoing egalitarianism, which would require equalization of expected costs of crime across all persons. Since vulnerability to crime is a function of factors such as "wealth, age, attitude toward risk, life experience, and physical and intellectual prowess," (32) not all of which should be "annulled" by law, the authors conclude that only certain disparities in vulnerability to criminal harm ought to be leveled by law, while others are allowed to remain.

Harel and Parchomovsky acknowledge that determining which differences in expected costs of crime should be deemed legally relevant is a significant challenge, but in the end they do too little to meet it. They assert that "it is intuitively plausible to argue that vulnerability attributable to race, gender, or sexual orientation justifies interference on the part of the state" (33); but why only these attributes should be judged legally relevant, given the wide variety of factors contributing to one's expected cost of crime, is never made clear. A person's age, physical condition, and level of income certainly play a role in fixing his or her position on a "vulnerability index"; if the urban poor have a much higher expected cost of crime than middle-class suburbanites, why should penalty enhancements not be levied against those who disproportionately victimize the indigent? This is a question made all the more urgent given the authors' concession that "it is probably true that poverty affects vulnerability to crime more than any racial or other factor." (34) It does no good to insist, as do the authors, that legal intervention "is justified when the increased vulnerability stems from certain personal characteristics of the victim, such as race, gender, religion, or sexual orientation," (35) since age and physical capabilities are just as much personal properties. Nor does it help to assert that the law must "redress disparities in vulnerability to crime that result from certain immutable characteristics of the victim." (36) After all, the aged cannot return to youth, nor the disabled to a life of normal functioning, yet neither being elderly nor being disabled is included by Harel and Parchomovsky as a relevant disparity, despite their obvious connection with vulnerability.

Finally, Harel and Parchomovsky regard as a virtue of the "fair protection paradigm" that it gives intuitively correct answers to contested cases. (37) For instance, they cite Dillof's case of the opportunistic mugger: "Mike is a mugger who mugs only blacks simply because he believes that the police are less likely to vigorously investigate muggings of blacks." (38) Mike's beliefs regarding the vulnerability of blacks clearly figures in his reasons for action, yet he does not act from racially hateful beliefs or desires. Harel and Parchomovsky maintain that Mike should be subject to an increased penalty, since he "sought to take advantage of the enhanced vulnerability to crime of the black population, which resulted from the reluctance of the police to investigate crimes against them. This enhanced vulnerability of blacks made them desirable targets to offenders like Mike as well as to other offenders who, unlike Mike, may be motivated by racial animus" (39) But if taking advantage of an enhanced vulnerability to crime is itself what controls, then the authors' view amounts to the claim that it is sufficient to levy a heightened sanction so long as the actor is moved by a fact that enhances the vulnerability to crime of the population from whom his victim is selected. This claim, however, is far too strong, as it fails to distinguish vulnerability due to race or sexual orientation from that rooted in age or income. Of course, this shows only that the authors cannot consistently enhance penalties for those convicted of injuring victims whose heightened vulnerability is due to race or sexual orientation without also doing so for anyone guilty of victimizing individuals known to have an increased expected cost of crime, whatever the underlying reason. Harel and Parchomovsky can meet this last criticism by simply "biting the bullet" and granting that penalty enhancements are justified in all such cases. But this maneuver is tantamount to a surrender, for it means giving up altogether on the idea of hate crimes as a distinctive form of wrongdoing. Suppose evidence shows that owners of a certain make and model of Japanese automobile have a higher expected cost of crime because their cars are especially attractive to thieves who run "strip shops." Mike the auto thief knows this and chooses his victims accordingly. If we insist that these facts are sufficient to say that Mike thereby commits "hate crimes," the force and significance of that label has been entirely drained.

Nor, lastly, is it even clear why the actor's awareness of the facts making the victim more vulnerable should be necessary according to Harel and Parchomovsky's account: what seems to matter is that Mike's conduct adds incrementally to the already disproportionately high costs of crime of the group from whom he selected his target, regardless of whether he is apprised of that fact. Thus, suppose that [Mike.sub.2] chooses to mug a gay man, unmoved by animus against gays and unaware either that the victim is gay or that gays have a heightened expected cost of crime. Nonetheless, by his actions he adds incrementally to the vulnerability of gays as a population. According to the author's view, [Mike.sub.2] might well be exposed to a hate-crime penalty enhancement, yet this result seems impossible to justify on any independent ground.

VI Hate and Denigration

I have investigated the claim that hate crimes are discriminatory wrongs as one way of thinking about the idea that hate crimes offend against some conception of equality. While that claim turns out to be indefensible, there is at least one other way in which those who commit hate crimes might be thought to violate a norm of equality. Recall the conduct of Jones. In Case One (but not in Case Three) the offender acted with hateful beliefs and desires. But in Case One it is the fact that Jones despises gays, holding them in contempt, that seems to matter to the penalty he merits. Jones's crime cannot properly be a hate crime unless his discriminatory targeting is referable to reasons which necessarily include bigotry or prejudice or other hateful beliefs. In both Cases One and Three, Jones acts on the basis of beliefs about gays, but only in Case One do his beliefs have a special significance. Defenders of hate crime penalty enhancements seem to hold that, in Case One, Jones commits a moral wrong of a sort distinct from the mere epistemic irresponsibility he displays in Case Three. Robbing a man whom you know to be gay and where you despise gays creates an independent wrong, over and above the wrong created in a case in which you rob a man whom you know to be gay and in which you merely believe him to be an easy target. How might this intuition be developed?

Supporters of hate-crime legislation have sought to locate the harm to victims of hate-violence in the moral injury or insult of being degraded and dehumanized in the very act of victimization. (40) Hate violence indisputably has severe consequences for those who are its victims; and it is easy to agree with those who have argued that victims of hate attacks experience emotional trauma, feelings of humiliation, insecurity, and distrust, and are left to struggle with a diminished sense of self-worth. It is also clear, though, that these experiences and feelings arise out of the awareness of the role that hatred or prejudice has played in the attacker's reasons for action. As Kahan notes, the victims' "aversion to their attackers' animus toward their group identities" is just what causes such victims to experience the distinct harms alleged to arise out of hate-crime victimization. (41) A blow to one's head is not also a blow to one's self-esteem unless and until one comes to understand that the blow was the result of the attacker having entertained reasons of a certain kind. According to the dignitary-harm argument, then, the unique injury caused by hatred is necessarily mediated by the victim's awareness of its motivation. But this is not sufficient to get us an argument for enhancing Jones's penalty over Smith's--without, that is, also claiming that the law may presume two things: (1) That in those cases where he is victimized by Jones, Roe understands the discriminatory reasons for which Jones singled him out, and (2) that Roe therefore experiences greater trauma (in these various ways) when victimized by Jones than by Smith. These assumptions are not easy to defend.

But the violation of equality here seems to lie deeper, in the reprehensible dispositions and valuations of hate criminals. According to Kahan, "an individual who assaults or kills another on account of [that person's ethnicity, religion, or gender] shows us that he enjoys not only the suffering of another human being, but also the experience of domination and mastery associated with denigrating something that the victim and others regard as essential to their selves." (42) Kahan contends that "what moves us to condemn an actor for harming another isn't the simple perception that her actions have diminished another person's welfare, but rather the judgment that her actions express too low a valuation of the other person's worth relative to the actor's own ends." (43) Thus, "what makes rape distinctive and distinctively worse [than assault] is the greater contempt it evinces for its victim's agency." (44) The commission of a criminal assault, then, reflects an improper valuation of the victim, and the same holds, says Kahan, of hate criminals: "Like assaulters relative to negligent jostlers, and rapists relative to assaulters, hate criminals relative to other types of violent criminals are--in the law's eyes--making an even bigger mistake about the objective worth of their victims." (45)

Criminal acts resulting from hateful beliefs and desires seem to constitute a distinctive moral wrong, not reducible simply to features of conduct more standardly used to aggravate punishment. This is because, in hating those I hurt, I debase my victims, denigrating their worth as persons by virtue of the beliefs I entertain regarding them. It is distinctively (and perhaps uniquely) denigrating or demeaning to the worth or dignity of an individual to be, say, beaten or killed where the beating or killing is referable to hateful beliefs or desires, as opposed to other motivations. Let us call this the Greater Denigration claim (GD). GD says the following:

An actor who commits an underlying offense and in which his or her conduct is referable to hateful beliefs and desires, other things being equal, demonstrates a distinctive and greater degree of disregard for the worth and dignity of the victim than an actor who commits the same underlying offense and in which his or her conduct is not referable to hateful beliefs and desires.

Is GD defensible? It is not easy to see how. Consider GD in light of the facts of one notorious hate crime:

William King and Russell Brewer saw a disabled black man, James Byrd Jr., and offered to give him a ride. Some distance down a rural road they stopped. They threatened to cut his throat, they beat Byrd viciously, and were alleged to have tried spraying him with black paint. Byrd was partially stripped, chained by the ankles to the back of a pick-up truck, and dragged three miles. One defendant saw that Byrd was "bouncing all over the place" and commented during the dragging that they were now embarking on a new chapter in a race war. Byrd's belongings were scattered along the road. His limbs were scrapped to the bone, a bloody smear left on the road over a mile long, his teeth ripped out--he was literally torn to pieces, his shoulder and right arm were found in a ditch; his decapitated head and neck rested nearly a mile from what remained of his torso. The remains were so badly disfigured that only fingerprints could be used to make an identification. (46)

Even in the absence of a thorough understanding of the nature of hatred as an affective and behavioral component of action, it is plausible to claim that Brewer and King were at a minimum moved by what Jean Hampton called "malicious hatred": a vengeful desire for one's own perceived elevation in status by means of the degradation or diminishment of another. (47) Both murderers were reported to have expressed not only satisfaction at their deed, but a sense that they were now important people, individuals engaged in the task of asserting the goal of white dominance. Brewer even boasted that he was "soaring like an eagle" after the thrilling "rush" of dragging and dismembering a black man. (48)

Contrast several different versions of this case:

(1) The assailants attack Byrd because he is black and they hate blacks, believing them to be inferior persons and desiring to hurt them.

(2) The assailants attack Byrd because he is disabled and they hate the disabled, believing "cripples" to be inferior persons and desiring to hurt them.

(3) The assailants attack Byrd because he is disabled and therefore, they believe, a convenient target. They desire to have fun and believe that dragging someone to death will be great sport.

Notice that in all three versions (we can suppose) the killers act with the same legally relevant state of mind: in each case the defendants act with the conscious purpose or intent to kill. Notice also, however, that someone committed to GD must say that the killers demonstrate more regard for the worth and dignity of the tortured victim, ceteris paribus, in version (3) than in versions (1) and (2). Intuitively, it is difficult to see how this result can be sustained. Why, we will be asked, is dragging someone to death and reducing him to a vehicle for enjoying the spectacle of dismemberment less denigrating or demeaning to his status as a person than killing him because you believe the disabled or blacks to be inferior individuals? The fact that Brewer and King delighted in ripping this man apart, whatever the precise reasons, seems to exhaust the moral space for further distinctions. Kahan's account, for example, would seem to entail that Brewer and King somehow accord marginally greater "objective worth" to Byrd when dismembering him for fun and convenience than when doing so as an expression of racial contempt. This result just seems difficult to understand, at least without a much better account of what it means to violate (or to respect) a victim's worth. In fact, we might well decide, upon reflection, that the actors in these three versions show an equal degree of regard for the worth and value of the victim's life--which is to say, none at all--so that, since all are cases of premeditated murder (all are equally intentional and brutal slayings), the assailants merit the same degree of punishment in each version.

In the end, the claim that hate-crime penalty enhancements can be grounded in the distinctively demeaning or denigrating quality of conduct springing from hateful beliefs and desires is no more defensible than the earlier claim that such enhancements are warranted because hate crimes are distinctively discriminatory wrongs.

VII Conclusion

If the arguments I have advanced in this paper are sound, we have at least a prima facie case for thinking that crimes arising out of hateful beliefs and desires do not count as a distinctive form of wrongdoing, above and beyond the (often horrendous) acts that are their constitutive elements. Therefore, a category of supervenient hate crimes carrying additional penalties is a moral anomaly in the law that ought to be jettisoned on the ground that such a category of criminality cannot be reconciled with the claim that persons should not be punished more severely than the degree of their wrongdoing would warrant. Absent a convincing defense, the extra punishment levied by penalty-enhancement laws would appear to violate this proportionality constraint: it would then be the case that such laws impose upon wrongdoers a penalty in excess of what he or she deserves. Of course, to abandon the existing structure of supervenient hate-crime laws does not mean that hate violence can no longer be punished. People like Russell Brewer and William King manifestly act in furtherance of their hatred, for the reasons they have for wounding or killing others include bigoted beliefs and vengeful desires, it is clear that we may properly criminalize such reasons for action when they bear upon factors that relate to the actor's culpability: when they relate, for instance, to the degree of physical injury inflicted or to the amount of psychological torment experienced by the victim. With respect to much hate-inspired violence, it is doubtless the case that these connections to ingredients of culpability do obtain and can be established by relevant evidence. So, even if existing laws are revised in the way i have suggested, there is a reason to believe that much hate violence will continue to be severely punished, but not through what looks like the morally flawed mechanism of a special category of penalty enhancements for hate.


(1) See the Symposium in Criminal Justice Ethics 11 (2) (Summer/Fall, 1992).

(2) At least some of the constitutional challenges to bias-crime statutes were settled by the ruling in Wisconsin v. Mitchell 508 U.S. 476 (1993) in which the Supreme Court rejected the argument that the biased thoughts motivating hate crimes are constitutionally protected forms of expression. For a thoughtful exploration of this issue, see Andrew Altman, "The Democratic Legitimacy of Bias Crime Laws: Public Reason and the Political Process," Law and Philosophy 20 (2001): 141-73.

(3) See Heidi M. Hurd, "Why Liberals Should Hate 'Hate Crime Legislation'," Law and Philosophy 20 (2001): 215-32.

(4) See, e.g., Susan Gellman, "Hate Crime Laws Are Thought Crime Laws," Annual Survey of American Law (1992/1993): 509-31. See also, "Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence?," UCLA Law Review 39 (1991): 333-96; Eric. J. Grannis, "Fighting Words and Fighting Freestyle: The Constitutionality of Penalty Enhancement for Bias Crime," Columbia Law Review 93 (1993): 178-230.

(5) James B. Jacobs and Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics (New York: Oxford University Press, 1998), 121.

(6) See, e.g., Jeffrie G. Murphy, "Bias Crimes: What Do Haters Deserve?" Criminal Justice Ethics 11 (Summer/Fall 1992): 20-23. Take beliefs, for example. The law enhances my punishment, both for cases in which I entertain, and those in which I fail to entertain, certain beliefs. I bring a loaded gun into the local shopping mall and begin to shoot in all directions, aware that there are others present and that they might be hurt. I am arrested and charged with reckless endangerment. The warrant for that charge turns on a key feature of my beliefs--namely, that I recognized the risk posed by my conduct.

(7) See Gellman, "Hate Crime Laws Are Thought Crime Laws." Hurd maintains that ethnic and racial bias or hatred are not "motives" in the right way, in that they refer neither to purposes, to goals, nor to specific intentions which take future states of affairs as their object. Bias is a dispositional state, not the kind of occurrent mental states typically cognizable as mental elements in criminal law. See Hurd, "Why Liberals Should Hate 'Hate Crime Legislation'."

(8) Dan M. Kahan, "Two Liberal Fallacies in the Hate Crime Debate," Law and Philosophy 20 (2001): 175, 183.

(9) See R.A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press, 2001), 140: "Punishment ... cannot then in justice be harsher than the offense deserves."

(10) I assume but do not argue for this minimal constraint. Some, such as Duff, argue that proportionality, understood in the "negative" sense that penalties imposed ought not to be disproportionate to the crime punished, is intrinsic to any form of punishment (Punishment, Communication, and Community, 132), certainly to any retributive view. This commitment to proportionality leaves open precisely how what is deserved is to be measured: for example, as a function of some combination or weighting of such factors as the seriousness of the harm produced by the offender's conduct or the culpability evidenced in his or her conduct. For explorations of these issues, see for instance, Anthony Dillof, "Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes," Northwestern University Law Review 91 (1997): 1015-81; Frederick Lawrence, Punishing Hate (Cambridge, MA: Harvard University Press, 1999); Alon Harel and Gideon Parchomovsky, "On Hate and Equality," Yale Law Journal 109 (1999): 507-39.

(11) Such laws are analogous both to older "masking" and "night-riding" laws aimed at curbing Klan violence in many southern states and to current institutional vandalism laws, that penalize acts which damage churches, mosques, or other religious structures. See, e.g., GA. Code Ann. 16-11-38 (2002). In Minnesota, St. Paul's "Bias-Motivated Crime Ordinance," at issue in R.A.V.v. City of St. Paul, 505 U.S. 377 (1992), penalized the placing on public or private property of symbols or objects such as swastikas or burning crosses with the intent to cause alarm or resentment. As Frederick Lawrence has argued, even these laws are not entirely free-standing criminal prohibitions, since they can be viewed as enhancing penalties for the underlying crime of assault in the form of "menacing" or "terroristic threat." See Frederick Lawrence, "Resolving the Hate Crime/Hate Speech Paradox: Punishing Bias Crimes and Protecting Racist Speech," Notre Dame Law Review 68 (1993): 673-721.

(12) Many of these statutes closely track the model statute framed by the Anti-Defamation League (ADL). See Civil Rights Division, ADL Legal Affairs Department, ADL Law Report: "Hate Crimes Statutes: A Response to Anti-Semitism, Vandalism, and Violent Bigotry" (1988 & Supp. 1990), citing examples. These laws criminalize acts of "intimidation," defined as conduct constituting an existing criminal offense, such as assault, and attach a greater penalty where the assault was committed "by reason of the actual or perceived race, color, religion, national origin, or sexual orientation" of the victim. See, e.g., Wis.State.Ann. 939.645 (West 1996). See also N.Y. Penal Law 240.31 (McKinney 1989) and Fla.Stat.Ann. sec. 775.085 (2003). Some states, such as California, enhance penalties by simply including bias as an aggravating factor or circumstance to be considered at the sentencing phase of a criminal proceeding. Such penalty enhancements may either be mandated or available at the court's sentencing discretion. See Cal. Penal Code sec. 422.7 (2003). See also Ohio Rev. Code Ann. 2927.12 (1997); New Jersey Statutes Anno. 2C: 44-3 (2003). Similar penalty enhancements are now available under federal law. See Violent Crime Control and Law Enforcement Act of 1994.

(13) The "supervenient" nature of hate crimes is apparent, for example, in the case of New York's Hate Crimes Act of 2000. The Practice Committee on the Act asserts that "upon the commission of the predicate crime, a simultaneous violation of the 'hate crimes' statute takes place." N.Y. Penal Law 485, Dorrannio, Practice Commentary (McKinney Supp. 2002). According to the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), elements of a hate crime augmenting the punishment of a defendant above the maximum allowed for the underlying offense must be submitted to a jury and proven beyond a reasonable doubt.

(14) As a result of the 1994 Federal Hate Crimes Sentencing Enhancement Act, the Federal Sentencing Guidelines were revised to require an enhanced sanction if it is found that "the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, sexual orientation of any person." The proposed federal Hate Crimes Prevention Act of 2003 would, if passed by Congress, have similar effect. See U.S. Sentencing Guidelines Manual 3A1.1(a) (2002) "Hate Crime Motivation or Vulnerable Victim."

(15) Frederick Lawrence, for example, insists that "a perpetrator of a crime who is motivated to select his victims on the basis of their race, religion, or ethnicity is a likely candidate to continue to commit such crimes, spurred on by the bias that--apart from the context of any particular attack--leads to a desire to search out and attack his victims." Frederick Lawrence, "Resolving the Hate Crime/Hate Speech Paradox," 716 n. 164. It is worth noting that some types of enhanced punishments arguably do rest on just these kinds of grounds: recidivist statutes, for example, punish repeat-offenders more heavily than first-time criminals; firearms penalty enhancements impose stiffer sentences for crimes committed with the use of weapons; and capital murder laws typically include as an aggravating factor that the murderer was already under a life sentence. (A number of these arguments in support of hate-crime laws are found in Lawrence, Punishing Hate.) Existing law aggravates the punishment for murders committed with premeditation, such as the use of poison or lying-in-wait for the victim; the Federal Sentencing Guidelines aggravate the punishment for murder when the act is committed for monetary gain; and the Model Penal Code calls for similar aggravation when the crime is particularly heinous, atrocious, or cruel, manifesting exceptional depravity. See Model Penal Code (1985), sec. 210.6(3)(11).

(16) See, e.g., U.S. v. Lallemand, 989 F.2d. 936 7th Cir. (1993).

(17) See U.S. Sentencing Guidelines Manual #A1.(b)(2).

(18) Lawrence, Punishing Hate, 51-58.

(19) Lawrence, Punishing Hate, 60.

(20) See Jack Levin and Jack McDevitt, Hate Crimes: The Rising Tide of Bigotry and Bloodshed (New York: Plenum Press, 1993).

(21) Lawrence, Punishing Hate, 61.

(22) Lawrence Crocker, "Hate Crime Statutes: Just? Constitutional? Wise?," Annual Survey of American Law (1992/1993): 485. See also Cynthia Willett, The Soul of Justice: Social Bonds and Racial Hubris (Ithaca, NY: Cornell University Press, 2001), 14: "hate crimes (motivated by racial, ethnic, or other rivalries) do not target the individual but the social status of the target's perceived group-affiliation. This type of crime does not only damage the individual but also reinforces large-scale social inequalities."

(23) In one sense, of course, every perpetrator can be said to have relied, at least implicitly, on some criterion of victim-selection; and since all selection is "discriminatory," upon a discriminatory criterion of targeting. The conduct actually being targeted by penalty-enhancement statutes is the intentional selection of the victim based on that person's identity as defined by his or her membership in a protected group or class--insofar, in other words, as that person is a woman, a black, a Muslim, and so on.

(24) This case is discussed by Jacobs and Potter, Hate Crimes, 25-26.

(25) Of course, being targeted on the basis of a characteristic that sorts the victim into a protected class may well turn out to be a good predictor of the underlying prejudices of the perpetrator, given what we know about those who engage in hate violence. But this is not a necessary connection.

(26) Dillof, "Punishing Bias," 1037.

(27) Dillof, "Punishing Bias," 1040.

(28) Many jurisdictions follow the Model Penal Code, for example, by including these and other factors as appropriately weighed in the penalty phase of capital cases. See Model Penal Code, sec. 210.6(2).

(29) See, e.g., Model Penal Code sec. 210.6

(30) Harel and Parchomovsky, "On Hate and Equality."

(31) Harel and Parchomovsky, "On Hate and Equality," 510.

(32) Harel and Parchomovsky, "On Hate and Equality," 510.

(33) Harel and Parchomovsky, "On Hate and Equality," 529.

(34) Harel and Parchomovsky, "On Hate and Equality," 538.

(35) Harel and Parchomovsky, "On Hate and Equality," 536.

(36) Harel and Parchomovsky, "On Hate and Equality," 510.

(37) Harel and Parchomovsky, "On Hate and Equality," 509.

(38) Dillof, "Punishing Bias," 1076.

(39) Harel and Parchomovsky, "On Hate and Equality," 534.

(40) See, for example, Lawrence, Punishing Hate, 61-63.

(41) See Kahan, "Two Liberal Fallacies," 185.

(42) Kahan, "Two Liberal Fallacies," 182.

(43) Kahan, "Two Liberal Fallacies," 181

(44) Kahan, "Two Liberal Fallacies," 181.

(45) Kahan, "Two Liberal Fallacies," 182-183.

(46) See The Houston Chronicle, Sept. 21, 1999, A1.

(47) Jean Hampton, "Forgiveness, Resentment, and Hatred," in Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge, UK: Cambridge University Press, 1988), 35-87.

(48) See supra., note 46.

David M. Adams is Professor of Philosophy and Director, Institute for Ethics and Public Policy, California State Polytechnic University, Pomona, CA.
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Author:Adams, David M.
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Date:Jan 1, 2005
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