The face of racism is often characterized by a swastika crudely painted on a wall, or a group of young white men screaming out their hate and anger towards a member of a hated group. The consequences of racism is often portrayed as a beaten up, dead body. This, most of us think, must stop. Presumably, open, convinced, ideologically driven racists thinks so to. Presumably, as with any kind of war, they regret that it had to come to this.
These expressions of hate and prejudice are highly problematic, and the long term effects, especially if they are not swiftly and forcefully dealt with, should not be underestimated. But what would happen if they disappeared? Would the problem av everyday racism – expressed in mild aversions, the unlikelihood of succesful encounters, covert discrimination – diminish as well, or would it, in fact, become worse? The question is this: what is the relationship between overt and covert instances of racism?
If we want to point out why racism is a bad idea, we are well served to point to these worst cases – the lynching of James Bird, the murder of Matthew Sheppard, and we do that rather than point to a job applicant narrowly losing out to another due to the foreign sounding nature of his or her name.
Yet the latter kind of situations are in all likelihood much more common and their effects much more widespread in modern racism. Most people overtly believe in the value of equality, but still suffer from unconscious prejudices. We can deal with the easy cases, but when it becomes complicated, and we can make up a reason that justify our aversion, prejudices have a chance to win out.
Explanations are afforded by generalizations, but motivations and emotions often draw their power from individual cases.
We are on the watch for populisitic right wing parties, because we still got the more obvious racists to keep before our eyes. We remember. We often recognise and react towards our own racist tendencies by the self loathing that comes with sharing beliefs with violent and obviously misinformed perpetrators. But what if they disappeared? Would we lack these markers of racism and thus loose our bearings?
Or, alternatively: do these instances now serve the function of carrying the weight of all racism, and the problems with it? So that if they DID disappear, we would have to face the fact that it’s actually as much the implicit racism of convinced egalitarians and liberals, that cause the unfair outcomes? Or would such a scenario rather be used in support of the racist idea that any inequality remaining in the absence of overt racism must be due to inherent inequality between the ”races”?
Hello! If you’ve just found your way here, odds are that you did so because of this article http://www.dn.se/insidan/insidan-hem/for-att-lyckas-med-lyckan-far-man-inte-vara-for-krasen
Feel free to look around. The last two years of posts deal almost exclusively with hate crime. If you want something more substantial on that topic, you may start off with this video
And maybe take a look at this rather hefty text, co-authored with Christian Munthe:
If you are more interested in my work on hedonism, here’s the full text of my dissertation ”Hedonism as the Explanation of Value”:
We pride ourselves of our tolerance and we chide others for their lack of it. Surveys of attitudes towards the foreign and policies addressing those attitudes often use the term ”tolerance”. The concept and it’s use has come under some scrutiny lately, and some of those with interests tied to the issues it is intended to cover have started to move away from it. The driving idea behind this resistance is that ”tolerance” is held to somehow imply dislike. Being very tolerant, then, would seem to require a great deal of dislike, and that’s not something we should strive for and certainly not a healthy measurement of attitudes. We’re not aiming for stoicism, surely.
The implication is held to be conceptual, but conceptual analysis is a tricky thing. If the implication you draw is one that is at odds with common usage, it’s possible that you’re using it wrong. Some concepts may be such that there are clear criteria for how they should be used independent of context or of current actual usage. But it is also quite clear that ”tolerance” is not such a concept.
”Tolerance” may not imply dislike. In medicine, tolerance seems rather to involve not having an adverse reaction to the introduction of something unknown or foreign to the system. Im lactose tolerant, but I also happen to love milk. There’s no conceptual tension in that statement. In fact, a lactose intolerant person (I know several) may love milk too, so in this sense, there’s no conceptual implication from tolerance to the attitudes of like or dislike.
Surveys operationalize concepts. ”Tolerance” in a survey of tolerance is nothing over and above a summary of the items in the survey. When science cover vague concepts (and they’re all vague concepts, dear) it relies on stipulation and on an argument that the stipulation is at least consistent with common usage, even if it does not exhaust it.
So it’s quite possible, even likely, that the tolerance we pride ourselves of and chide ourselves and others for lacking is not a concept that implies dislike. It’s more likely to imply a lack of adverse reaction to the introduction of something unknown or foreign. Usually with the add-on that the thing in question is not malign. But that’s actually not my point. My point is rather this: Don’t let too much of your argument depend on the implications from your interpretation of a loosely defined concept.
On the 25th of november the youth wing of the swedish social democratic party held an action they called ”nätfight” (”net-fight”). The idea was, for this day at least, not to let all the xenophobic nonsense that flourish on various internet fora to stand unopposed. Arguments were to be made. It’s a ”take back the internet from the Trolls” kind of initiative. Most non-xenophobic people dislike engaging in these conversations (especially those that have tried without result) as very little good is likely to come out of such an engagement. Perhaps we believe that engaging will only make things worse. Xenophobic views are not primarily based on arguments, and are unlikely to disappear or be made more moderate on the basis of argument.
This action is similar in idea, but different in content, to two other recent attempts to counter the dark sides internet. The first was launched by a swedish journalist and involves ”love bombing” of sites and Facebook pages where young people are subjected to bullying. The other started with the #signyosonisgay hashtag, which started as a homophobic method of ridicule, but was turned into a medium to show love and support for homosexuals.
The first initiative is based on argument, the other two is based on ”crowding out” bullying and xenophobia. But they have one central feature in common: they are based on the idea that the harm being done in the name of free speech (especially on the internet) is effectively countered by more speech.
Some will say this is the ONLY acceptable way to counter harms done via speech. The ”more speech” solution is preferable to regulation of speech – it’s results outperform in every regard, or so goes the argument. It’s more effective in discouraging harmful speech, it empowers the victims of such speech by demonstrating that both the arguments and other people are on their side, and it does not threaten free speech (and we should be reluctant to equip authorities with the means to restrict speech).
There’s no question that ”more speech” is for the most part a good solution. But the reasoning applies to almost any cause of harm: we should alert the police when we see an assault taking place but we should also intervene. Intervention, when possible, is often more effective on the precise same grounds. But should such a duty, and such initiative, replace the police and laws? Surely not.
Even if the ”more speech”, and ”intervention”, solution, is effective when active, it is basically unfair. It only protects those with friends or advocates active and good enough to make enough of a difference. The law exist, or should exist, to provide protection for those who are not protected by such resources, those who are not currently popular. To argue that ”more speech” should replace hate speech laws is similar to a rich person saying that the police is not needed when one may as well hire body guards.
The other reason is that, as stated above, evidence suggest that xenophobia is not based on argument, and thus will not disappear by argument. Arguments are effective in other ways, by strengthen the victim, and the victims advocate, but it is unlikely to deter the assailant. Criminal sanctions have the benefit of providing reasons to desist no matter whether you accept the argument or not. This, to, is the rationale behind the two non-reasons based initiatives above. Even if you cannot persuade the haters to stop, you may crowd them out, you can bore them and limit the impact of their statements.
But there’s nothing to suggest that these effects would be lessened by the presence of a hate speech law.
The locus of the problem
In policy documents and in the scholarly literature, the idea recurs that the contemporary problem with xenophobia and racism is not primarily located in extremist acts of violence but rather in prejudices prevalent in the general population, and primarily expressed in minor acts of discrimination and behaviors well below the threshold of the criminal. These acts and attitudes when combined, when systematic, accounts for many avoidable problems facing society in general, and targeted groups in particular, and are quite clearly a proper target of policy measures. In addition, these widespread attitudes are often held (see Barbara Perry’s 2001 book ”In the name of hate” for instance) to provide the background conditions and justification for more severe hate crimes. Hate criminals may take everyday racism as their mandate to offend
The inclusiveness of the legal definition
Hate crime and hate speech laws target, depending on jurisdiction, more or less extreme versions of discriminatory actions. In the hate crime literature (See Iganski 2008 and Perry 2001) a case has been made in favor of an inclusive definition of hate crime, not limited to cases of extremist violence, but including more or less any crime in which a bias element plays a central role. The argument in favor of such a definition is usually made on the grounds that less extremist, less obviously racist, yet still hate motivated crimes, have the same sort of particularly harmful impact as extremist crimes has, and this is the morally relevant distinction between hate crimes from other crimes. Focus on the obvious cases can make us blind to the prevalence of these relatively ”minor” crimes , and can thus have a detrimental an impact on victims tendencies to report and on authorities tendency to respond. It may also make us blind to the occurrence and impact of non-criminal covert racist behavior.
Harm and Prevention
Hate crime and -speech laws and statutes are often justified on the basis of the harm caused by these crimes. The justification may be retributory, but for the most part, the assumption and justification is that punishment has a preventive function. It is supposed that legislation will limit the occurrence these crimes, and of their harmful effects. It is also viewed as an expression of the state’s commitment to equality. It is presumably assumed to have a discouraging influence on prejudices in general. It’s to the latter function I’ll now turn.
Wider effects on prejudice
The point is this: even if the non-criminal, less obviously xenophobic expressions of prejudice is the true locus of a societiy’s xenophobia problem (and the source of target groups remaining disadvantaged), punishing the more extreme manifestations have effects on the prevalence of the attitudes thus distinguished as aggravating. This, presumably, is their rationale. There is little point in the criminal law expressing commitment to equality if the predicted effect is not a reinforcement of support of equality.
Are hate speech laws effective?
In his 2004 book The Hateful and the Obscene, philosopher Wayne Sumner argued against hate speech laws on the grounds that they are largely unnecessary. The kind of racist expressions that presumably warrants criminal sanction in this way is likely to be counter-acted by public opinion and reactive support for victimized groups. Society would indeed be worse if racist speech would stand un-opposed, but it isn’t. At least not for established minorities (which tends to be the ones protected by this sort of legislation). This, of course, is part of the classic liberal defense of the first amendment: the solution to hate speech is more speech, not restrictions on speech. Hate speech legislation, on this view, is not effective and thus lack justification. Indeed restrictions are likely to make would-be offenders self-righteous and martyr-like and may thus exacerbate the problem.
The extreme and the everyday
The relation between extreme/criminal acts and speech and everyday xenophobia is crucial to policy and legislation pragmatically construed. If hate crime and – speech laws may in fact make things worse in this way (as argued in Jacobs and Potters seminal 1998 attack on hate crime legislation) and it is the widespread prejudice in the non-criminal population that accounts for the severe impact of these crimes (the impact of hate crime is presumably more severe in a society where the victim is also subject to widespread prejudices), we have a dilemma. If the public reply to hate crimes is diminished prejudice in the general population, each hate crime is likely to diminish the conditions for their particularly harmful impact. While this should not be counted as a mitigating factor, it does rather undercut the rationale for it being an aggravating factor. In particular if the attitudes that actually determine the impact is not that of the offender, but that of the general public.
One mechanism by which punishing hate motivated speech and acts may have a detrimental effect is, as stated in the introduction, if it means we ignore and accept everyday racism as relatively unworthy of attention. Hate crime legislation, especially when it is not enforced, can be a relatively cheap way of ”taking prejudices seriously”. It can express commitment to equality while not making a commitment to work towards equality.
The case for legislation
The argument that hate crimes and -speech is naturally counteracted by public reactions, because tolerance is the prevailing attitude in most modern societies, does not necessarily undermine the case for legislation. In fact, it may offer a further argument in favor of these laws: Legislation (plus prosecution and sentencing) is part of the public ”reaction” to these crimes and to this type of speech. The public condemnation of these acts (be they acts of violence or of speech) means that they are held to warrant extra punishment. The laws are legitimate. The support offered to victims should not just come from public reactions (which a fickle and too dependent on ones groups prior standing) but from legislation that ensures equality of consideration.
The empirical question, crucial for policy
Do laws (and prosecutions, sentencing etc) have a reinforcing impact on attitudes thus expressed? This, is an important question. And it would seem to be an empirical one, the settling of which depends on careful (and methodologically very complex) evaluations. Do effects on general attitudes depend on an inclusive hate crime concept, for instance, showing that non-extremist and non-violent crimes can be hate crimes too? Does it depend on law-enforcement making these crimes their priority? Or might such a policy result in a worsening of the situation, by putting the emphasis on group conflicts? These, as I say, are clearly crucial question to answer if hate crime- and speech legislation is based on and ultimately justified by their role in, a general anti-prejudice policy project.
A few months ago, the German partner of the ”When Law and Hate Collide” project hosted a splendid symposium on hate crime.
You can find all the presentations on youtube.
My presentation on the Hate Crime Concept(s) (the spoiler is in the title: there might be several such concepts) is here.
The slides, if you find that you need to look at something a little less distracting than me moving about nervously, are here: The Hate Crime Concept(s)
In his influential 2008 book ”Hate Crime and the City” (the City is London, and there is no further structural or thematic similarities to the HBO series) Paul Iganski provides an excellent interdisciplinary account of hate crime. I will now do something very mean spirited to it: I’ll pick a single sentence – sentence FRAGMENT – out of its context and tell you that what’s wrong with it illustrates one serious flaw in the ”hate debate” (Incidentally the title of another volume, edited by Iganski. It too has an interesting single flaw. I’ll get back to it.) Here it is:
…however, what distinguishes ‘hate crime’ from other types of crime is that all ‘hate crimes’ generally hurt more than parallel crimes.
As previously mentioned, Iganski has provided evidence to the effect that hate crimes tend to hurt more than similar but otherwise motivated crimes. But that’s not what this sentence says: It says that ALL hate crimes GENERALLY hurt more. The ”All” is superfluous or misleading, and offsets the important qualification that hate crimes GENERALLY, but not always, hurt more than parallel crimes.
But the ”all” is not really an innocent typo: it carries the weight of the claim that this is what DISTINGUISHES hate crimes from parallel crimes. Of course it isn’t. In order for the claim to be made that one type of crime causes more harm than another there must ALREADY be a distinction of types. Otherwise, ‘hate crime’ would be the class of crimes that tend to hurt more than parallel crimes, and then ‘hate crime’ is a fantastic misnomer. And if ‘hate crimes’ would be distinguished by tending to cause more harm, then the claim that they tend to cause more harm carries no information.
Iganski intends to provide a victim-centered conceptualization of hate crime, that’s why impact matters and should be part of the ‘hate crime’ function. But then something else is needed, a specific ”kind” of harm, say, that’s only contingently (but strongly) related to hate motivated crimes. But then we need more illumination: Is there such a typology of harms, and what is it’s normative significance?
As mentioned earlier in these posts, there is no problem justifying blanket punishment enhancement for types of crimes on the basis of their contingent propensity to cause harm. The distinguishing mark, however, should lie elsewhere.
Rather then positing a type of harm, a ”victim centered approach” of hate crime could, and should, take an indirect route: via the victims perception of the motivation of the offender and/or content of the offense. This makes more conceptual sense, as almost all formulations (‘hate’, ‘bias’, ‘hostility’ crimes) does focus on the mental state of the offender as the distinguishing feature.
The justification of punishment
Ok, short background: The traditional justification of punishment is based on two not entirely independent considerations: Wrongdoing and Culpability. There are other considerations, but -with the possible exception of strict liability offenses – these are necessary conditions for the justification of punishment. If no wrong has been committed, or the agent is not culpable, there can be no justification of punishment. This rules out mere ”utilitarian” justifications of punishing an innocent person in order to bring order or create a false sense of safety in the public. Now, what counts as criminal wrongdoing is a matter of contention, but the minimal conception has it that it is a matter of harm. It’s minimal in that it does not presuppose anything beyond the nearly universally accepted principle that inflicting harm is to be avoided. The wrongness of an action is a matter of the harm caused. But it does not end there. Attempted murder causes no, or rather little, harm, but still involves substantial wrongdoing. Intending, or rather: risking harm is thus also a form of wrongdoing. It’s notable that the notion of risk is actually rather more central than the notion of intention , as is shown by the tendency not to punish ill intentions when the means used are clearly inadequate. Homeopathic poisoners face very limited charges.
Hate crime legislation
”Hate crime hurts more”. This claim is supported by most proponents of hate crime legislation, Notably Frederick Lawrence and Paul Iganski. This argument, then, seems to take the ”wrongdoing” route to the justification of punishment enhancements for hate crimes: if punishment is to be proportional to harm, crimes that causes more of it deserves harsher punishments.
Critics of hate crime legislation (notably Heidi Hurd and Michael Moore, Anthony Dillof , James B. Jacobs and Kimberly Potter) tend to question the above claim. Jacobs and Potter points out that the evidence is slim, and that hate crimes are not compared with properly ”parallel” crimes. This criticism had a lot of merit at the time of it’s publication, but more recent research shows that even when controlled for other factors, hate crimes tend to cause more emotional harm than parallel crimes. Another line of criticism, from Hurd, Moore and Dillof, points out that hate should not be used as a proxy. Not all hate crimes cause more harm than parallel crimes. So is it not unfair to punish those that do not cause more harm because others tend to? Lawrence and Iganski admits this, and Lawrence actually argues that while the justification of the legislation is based in the fact that hate crimes hurt more, the justification of individual punishments is based on the culpability of the offender. It would seem that individuals, then, are being punished for their opinions, and a whole new can of criticism opens up.
Hate and Risk
Heidi Hurd points out that if we allow enhanced punishment on the ground that the type of crime they commit tends to cause more harm, we would have to punish bad tempered people more than others. Bad tempered people tend to cause more harm than others, so even when they don’t, they’re assaults should be viewed as aggravated. This is intended as a reductio, but does it work as one? Assault with a deadly weapon is worse than assault without one because it risks greater harm, even when it does not in fact cause it. There is a clear mechanism by which the deadly weapon (hence the name) would tend to cause the harm, and by wielding it, you are risking that harm.
Now apply this to hate crimes. Hate crimes, i.e. crimes committed because of hate/bias/prejudice towards a certain group, tend to cause more harm because acts expressing hatred do. There is, arguably, a mechanism by which hate crimes tend to cause a certain kind of harm. This does not always happen, and it’s not the only mechanism by which such harm is caused, but committing a hate crime risks causing additional harm. It is ”assault with a harmful opinion”, if you will. I’ve used the drunk driving analogy before: you risk causing great harm if you drive under the influence. You may cause the same harm while sober, and you may avoid it while drunk, but this does not undermine the fact that you are justifiably punished for taking the risk. Of course if you actually do cause harm under the influence, you are punished more than if merely taking the risk. If the analogy holds, hate should be aggravating even when it does not cause additional emotional harm, but even more so when it does.
Opinion or expression?
Opinions does not cause harm on their own. They must be expressed and/or perceived in order to do so. This suggests, as I’ve explored elsewhere, that we might move away from punishing ”opinions” and concentrate on hate expressive acts. There are many benefits to this approach, chief of which is that expressions are more easily ascertainable than are opinions. We don’t punish ”thoughts”, and we focus on what actually cause the harm. A crime that expresses hate causes/risks the same harm no matter whether the perpetrator actually harbors the opinion, so this seems a natural route to take.
But expressions can be open for interpretations and the criminal may plausibly deny intending to express anything particular about the victim. Should evidence showing that the perpetrator actually harbors the opinion then be rendered irrelevant? Not necessarily. If you hate a group and commit a crime against someone of that group because of it, you risk expressing the hatred that in turn risks causing the greater harm. A risk based approach is thus consistent with both versions.
A suitable mode of thinking when it comes to legal punishment is in terms of functions. What functions are punishments supposed to perform? Let’s restrict this discussion to prison sentences for now, but assume that it applies to other forms of punishment as well. In the literature, four functions are easily distinguishable. The question I’d like to raise is whether these functions can all be performed by the same sort of punishment, or if they come into conflict.
1. The first function is deterrence. A spell in prison is an unpleasant thing. At the very least, presumably, it’s time spent away from your friends and family, from your projects in the world outside. If you care about not being cut of from those things, staying out of prison is a good idea. Of course there are all kinds of questions about how much worse time spent in prison is in relation to your life outside but let’s leave that to a side for now and state this principle: In order to perform the function of deterrence, a punishment need to be in some way or another, unpleasant. Or at least believed to be so.
2. Another function performed by punishment is retribution. The offender have harmed someone, and perhaps harmed society as a whole as well. In order to settle this, some form of harm must be brought to the offender. This is supposed to satisfy some need of the victim, who has a grievance, and the punishment will somehow ”balance the scales”. Again, the punishment, it would seem, need to be in some way unpleasant. Unpleasantness is normally a bad thing, and bad thing distributed to people who commit bad acts, are good things, or justified, or whatever. I should point out that even if you (as I) do not think retribution provides any kind of real reason to impose a punishment, it is clearly one of the functions performed by punishment. If you’re (like I am) critical of it, this means that a policy for punishment that makes it less likely to perform this function is no reason not to implement that policy.
3. A third function is rehabilitation: The offender should benefit from the punishment in the sense improve. Change his/her ways. This function is backed up by reasons of prevention, just like deterrence is, but functions in a slightly different way. The idea is that offenders offends because of some mistaken factual or moral view, because of some mental problem (a very large portion of current inmates have some mental disorder) or lack of skills suitable to make a honest living. Now this function does not require the stay to be unpleasant. Indeed, it would seem that it should not be unpleasant. Or perhaps rather – it should be unpleasant for the criminally inclined features of the agent, but not for the agent as a whole. It should, in lack of a more specific idea to express, be rewarding to improve.
4. The fourth function is simply that of protection. I.e. storage. Keep the offender away from the public for a while, as he/she is proven to be dangerous. This implies nothing about how pleasant the storage facilities should be.
Let’s forget about retribution for know, and concentrate on deterrence and rehabilitation. Both aim to change behavior and to prevent future offenses. But there is this conflict – a deterrent needs to be unpleasant whereas rehabilitation may very well depend on being at least partly pleasant. Perhaps both functions may be performed if we have the idea that something unpleasant can be good for you. The unpleasantness of the stay in prison, then, would presumably drive home the message: don’t do this thing.
Is punishment about learning?
Indeed, it would seem that both deterrence and rehabilitation is about learning, where the latter includes more of positive reinforcement, and the former solely on punishment. Punishment, as we know, is rather effective when it comes to learning people to avoid something very specific (i.e. committing this crime and get caught doing it). It’s terrible at learning people why to avoid that behavior, in a way that generalizes. A sensible criticism of deterrence theories is that it provides offenders and would-be-offenders with the wrong kind of reason. Of course we shouldn’t hurt people, but not because we would be punished if we did. Providing an unpleasant punishment provides offenders with the wrong kind of reason not to reoffend. It’s extrinsic to the behavior we want to stop, which means it’s contingent on the irrelevant risk of getting caught. Rehabilitation, presumably, would concentrate on getting the offender to recognize the actual reasons why they should not harm people.
This function – to drive home the actual message about moral reasons – should primarily be performed outside of prisons, be taught in schools etc. Punishment, it could then be said, is about providing an additional reason for those who obviously don’t care about others. We know there are people who don’t care about us, and we need them to refrain from hurting us, so we better provide this reason or suffer the consequences. If we can’t ”rehabilitate” offenders, or merely if such offenders exist, this is fair enough. The problem, then, is how to have punishment perform both functions at once. It seems to be a problem that can only be solved if we let punishment depend on individual assessment. Justice, then, should not be blind to the character of the offender.
Two types of deterrence
An additional problem is the fact that the risk of an unpleasant punishment may be part of the most effective strategy to stop people from offending. But a rather more pleasant rehabilitative strategy would, perhaps, be more effective at stopping offenders from re-offending. Not by deterrence this time, but by making offenders aware of the real reasons, and also to provide them with better options and the skills required to take advantage of these options.
The function of the unpleasant
Is it essential that punishments be unpleasant? I’m not going to rule it out. Threats, implicit and explicits, are common in most forms of education. If you fail an exam, there is the threat of having to take the class all over again. It would be good for you, provided that the class is important, and you would be better off taking the class again than you would be getting away with your ignorance. But maybe you don’t see it that way, and that may very well be part of your motivation to study hard before the exam. It’s the wrong kind of reason, but, with a little luck (educators hope) that reason will eventually bring you to recognize the right reasons. Recidivism rates suggests that this does not work in current prisons. The first part, providing the unpleasant surrounding, might work and some deterrence take place, but the transfer from the wrong to the right kind of reason rarely does.
Who should be in unpleasant prisons?
Threats and punishments are signs of failures. Society has failed to provide the right kind of reasons, and must now cope by providing instrumental ones. If we can learn the right reasons not to hurt one another, we should be taught this by living among others. If we don’t, through no fault of our own, we should not be punished unpleasantly. This is a rather christian principle – if you have not been provided with the proper case for belief in God, Hell is not for you. Heaven isn’t either, not yet anyway, but you won’t burn. This strikes me as a sensible practice. But if we can’t learn, if we’re egoists or psychopaths, if we are people who can only see the point of refraining from a practice if there’s negative on our own well-being, then presumably prison should be an unpleasant place, something to be avoided, and rehabilitation would have no point.
One last point, before I end this (still very open) post. In order to deter, prison should perhaps be believed to be unpleasant. And, if rehabilitation has not worked, offenders should keep that belief when the get out, in order not to re-offend. But there is no reason for prison to actually be unpleasant. If the threat of an unpleasant stay did not stop you, there is no reason to actually give you an unpleasant stay.
Victim-centered accounts of hate crime
One of the main issues debated when it comes to hate crime is about its victim: Who are the victims of hate crimes? This can be taken as an empirical question about the most common victims of hate motivated attacks – a very relevant question that can and probably should drive policy measures – or it can be taken as a conceptual question regarding what counts as a hate crime. There is a widespread belief, for instance, that only minorities can be the victim of a hate crime. But in most legislations being targeted because of religion, for instance, includes being targeted for belonging to the majority religion. It’s just much less common.
Very few countries have an open-ended scope for victim, suggesting that it’s not merely the ”hate” or ”bias” aspect that makes these crimes of special interest. The sort of group that you hate must have some particular feature or history, that makes targeting them a particularly bad idea.
It is, in fact, not the actual group-membership of the victim that counts, but what group the perpetrator believe the victim belongs to. I’m not Jewish, but because of my name and some superficial features, one may perhaps be led to believe that I am, and if one attacks me because of this belief and bias toward Jewish people, I would be the victim of an anti-semitic hate crime. This, of course, makes sense if hate crime focuses on culpability of perpetrator: for all he/she knew, I’m Jewish and attacking me would tend to have the intended consequences of harming me and my group. In fact, the targeted group may still suffer, if they get to know that I was targeted because (mistakenly) believed to belong to them. One notable feature of this arrangement, however, is that I, presumably, would not suffer more because mistakenly being held to be Jewish than if I had been the target of some otherwise motivated crime. So harm-wise, it might be preferable that I be the victim of an anti-semitic attack than that an actual Jewish person is. But, of course, if targeted in such an attack, I would probably not have the typical supporting back-up of the Jewish community, so perhaps I would, in a sense, be worse off. Oh well.
There’s one further aspect: It’s not enough that the perpetrator believes that the victim belongs to a certain group, that must also be the reason why that victim was chosen. This is of considerable importance, as we shall see below.
Hate crime legislation was developed in support of certain groups that were very often targeted by bias-motivated crime. Certain ethnic and religious groups and certain groups based on sexual preference were, and still are suffering more than their share of bias motivated attacks, and something had to be done about it. Several things, in fact. But there are two rationales lurking here: 1) These people are being targeted more often, and we need to create incentive for this to decrease. And 2) These people suffer more as a result of being targeted than do other people. This is the ”hate crimes hurt more” account, which I’ve written about before. Both these accounts make room for limiting the ”hate crime” category to certain groups: those that are hurt more by being targeted. This is in line with the harm principle – punishing perpetrators in proportion to the harm they cause, or intend, or risk, to cause.
We may speculate that 2) is true because 1) is true, but let’s focus on 2). This suggest that certain groups are more vulnerable to harm. They may be such, in a sense developed by Wolff and De-Shalit, that their disadvantages cluster: They are not only more likely to be victims of crimes, but also less likely to secure jobs, more likely to be discriminated against, having less access to certain social goods etc. Targeting the vulnerable seems to add to your culpability (even if you could defend yourself by saying that they were already at such an disadvantage, that another attack wouldn’t make things that much worse). Let’s grant this, for the moment, and say that hate crime legislation is in place to protect groups that are at a disadvantage. Minorities often are, but not all minorities. The very rich, for instance, is a minority, but not a vulnerable one. Targeting them would not, on this account, count as a hate crime.
Vulnerability and motive
Now we come to a tricky issue: we’ve said that what’s important in hate crime is 1) Perception of the victims group and 2) Vulnerability of that group and 3) Hate/bias toward that group. If 3) is essential to hate crime, and this should fit into the ”vulnerability-as-prone-to-harm” account, we must show that targeting a group because of membership is worse than targeting them for some other reason. I.e. prone to cause more harm. We are currently not enhancing punishment just for knowingly attacking someone belonging to one of these group, so this seems to be an essential ingredient. The argument is usually that if I’m targeted because of group-membership, that means I and my group live under a constant threat of being targeted again. I won’t evaluate this claim here, but grant it and see what follows. For if this was a tricky issue, the following is even worse:
Vulnerability as perceived by victim
Let’s grant that for most societies, the majority is not at a disadvantage (this may be a conceptual claim, or an empirical one and as such is probably challenged by the 99% movement). So if I’m targeted because of belonging to that group, I’m not suffering any additional harm, and the perpetrator would not have deserved punishment enhancement. Despite fulfilling the other criteria, the ”hate” part, I’m not the victim of a hate crime. I don’t believe muslims, say, are a threat. I don’t think they are taking over the country I live in and intend to bring in Sharia law. But I know that some people do. Most of them are probably just paranoid and misinformed, a lot of them seem to be clear cut racists. These people think that they are under a real threat from muslims. So what happens when one of them is attacked by a muslim because of majority group-membership? Presumably perceived vulnerability matters to the harm experienced by a victim. So, again, attacking me for belonging to the majority would seem to be not as bad as attacking a racist for that same reason. The same sort of insecurity would tend to spread, at least in the racist community, and the harm would be, and should be foreseen to be, considerable.
Should this count as a hate crime? I’m guessing most people would say no. I tend to say ”no”. But this means the vulnerability account needs to be amended in some way. Perhaps the answer is that the attacker only thinks that the victim belongs to the majority, and that at least the majority of the majority does not perceive themselves to be threatened in this way. It’s only if they target the ”vulnerable” group of the majority that they are culpable. But then, of course, we’ve said that they are not targeted because they belong to the vulnerable subgroup of the majority.
I’ve not considered a case where racists are targeted because they are racists, partly because I don’t think many of them perceive themselves as such. But let’s say that a group is targeted because of their racists beliefs, and that the vulnerability-related harm ensues, for the reasons mentioned. Would this count as a hate crime? If you suggests ”no”, there is a further victim based account, and I will deal with it in another post.
One reason why hate-fuelled crime against racists would not count as a hate crime might be that their vulnerability is based on mistaken beliefs. But note that the same would seem to hold for at the very least most of religious groups as well. But perhaps it is because victims of hate crimes are supposed to be innocent. I.e. in no way deserving of hate? There is something morally wrong with being a racist, the same moral wrong that other hate crime concepts take as their justification. And hating the immoral might not add to culpability. In fact, some would say that it would be a mitigating, rather than aggravating circumstance. I’ll return to this in a later post.