May 9, 2007
Crime and Punishment Department
Second Thoughts on Hate Crimes
(My discussion of hate crimes arises against the background of Bush's veto of a new federal hate crimes bill, but I'm not discussing that bill at all.)
A few days ago I blogged about hate crime laws. These laws increase the punishment for "hate crimes," which are crimes that are motivated by bigotry. Beat a guy because he cut you off in traffic, that's an ordinary crime. Beat him because he's black, that's a hate crime. My post explained why I don't like the idea of criminalizing hate.
In a nutshell, it seemed that hate crimes were increasing the punishment for crimes based on what the perpetrator was thinking, and I don't like the idea of punishing people for their thoughts.
My intuition was that that if we analyzed specific scenarios for purported hate crimes, we could classify each of them into one of two categories.
In the first category, the hatred is not important to the crime and therefore does not deserve extra punishment. For example, suppose a kid shoplifts a CD from a store. Would it be a substantially worse crime if the store was owned by a Korean family and the kid did it because he hates Koreans? I tend to think not, so this scenario does not cry out for a law against hate crimes.
In the second category, the criminal's hatred manifests itself as additional criminal behavior, such as torturing his victim to death instead of killing him quickly. We could (and probably do) punish torture murders more harshly than simple murders. There's no need to invoke the thought-crime of hate to justify enhanced punishment when we can invoke the very real crime of torture.
This makes a lot of common sense: If the hatred does not lead the criminal to do anything that a non-hating criminal would do—that is, if the hate crime is objectively identical to the non-hate crime—then how can we say that the hate crime is worse?
There's a big complication, however, because not all hate crimes have additional criminal acts, yet we can still identify them as hate crimes. If a black guy with a white girlfriend gets beaten up outside a bar by two guys saying something about "jungle fever," we don't need to read minds to know they were acting out of racial hatred, even if they didn't do anything (in addition to the beating) that we could criminalize. Should they be punished for that?
I got into an argument over this in the comments to a posting at Crime & Federalism with civil rights activist Christopher King, and he eventually said something that gave me pause for thought:
[T]rust me on this, if you have ever been attacked or chased solely because of the colour of your skin or your ancestry or other immutable characteristics (and I have been on too many occasions to recall) yes it will change your outlook.
In other words, maybe there are some hate crimes that are in a third category, where hatred increases the subjective suffering of the victims, but there are no additional acts that can be used to justify a harsher punishment. Shouldn't the subjective suffering of the victims count for something?
There are times when the answer to a question like that is "no," because the victims are mistaken or lying or have brought suffering on themselves, but I have no reason to believe this is one of those times. Perhaps hate crimes are necessary after all.
.
Leave a comment