Hate Crime: Beliefs, prejudices and aggravating factors

Increasing or decreasing a sentence based on the assailant’s motive is common in the law, and although a person’s abstract beliefs may not be taken into consideration in sentencing, racial animus or other prejudice can be considered if they are relevant aggravating factors. Enhanced penalties are appropriate for biased inspired conduct because it is thought to inflict greater individual and societal harm, such as the greater possibility for retaliatory violence, emotional damage to the victim and community unrest.

William Rehnquist

The above statement includes much of what is difficult with hate crime legislation. It’s well worth dissecting.

First: The assailant’s motive matters, and can even affect the severity of the punishment. Presumably, this means that we rank some motives as worse than others. Note that ”motive” is not the same as ”intention” here. If I intended to wave at a friend and in the process hit someone in the face, my intention makes my action less blameworthy than if I had intended to strike that person. This is uncontroversial, but it does not speak to motive in the relevant sense. But say I did intend to strike him, does it matter what my motivation was? Again, it does, if my motive, or my reason, was to stop him from doing something bad, rather than merely to cause him harm. But this, again, is not the ”motive” intended in ”hate crime”. It is, in fact (and I will return to this matter again and again for the next 18 months), highly unclear what ”motive” is.

Second: But we can narrow down on what Judge Rehnquist has in mind: Motive is a proper consideration in law. But abstract belief isn’t. This is based on a liberal principle to the effect that You should not be judged by your beliefs, but only by your actions. No one denies that we should punish the crime in hate crime. The contentious issue is whether we should add punishment for the motive.

Rehnquist states that ”racial animus or other prejudice” can be considered if they are relevant aggravating factors. There are several questions that opens up from this statement – What is the relevant difference between a prejudice and an ”abstract belief”? Can’t I have a prejudiced abstract belief? Whatever the difference, apparently prejudices can be ”relevant aggravating factors”. But can’t abstract beliefs be aggravating factors too? Are they ruled out by definition? What is an aggravating factor, anyway? Again, we have to look at how the statement continues

Third: Enhanced penalties are appropriate when the act (”is thought”, but surely that’s not a necessary qualification) to inflict greater individual and societal harm. This harm based justification for enhanced punishment is influential, fairly uncontroversial, and has strong support in legal tradition. If your action cause, or is likely to cause, more harm, you are more culpable and should, according to the principle of proportionality, be punished more. Presumably, the argument is that any factor likely to make the crime hurt more, is thereby a ”relevant aggravating factor”. But then, why make the distinction between ”prejudice” and ”abstract belief”? Does a crime based on an abstract belief about racial inferiority, say, cause less harm than a crime based on racial animus or prejudice?

Fourth: The relevance of the risk of greater emotional damage to victim and the victimized group seems uncontroversial, but what about the risk of retaliation and community unrest? Should I rather pick on people who wont retaliate? Is it worse to attack a much loved celebrity than an unknown homeless person? On the flip side – if my crime cause not community unrest but community cohesion, because people come together in their condemnation of it, is my crime thereby less bad? Utilitarian terms and conditions apply.

One of the key challenges to Hate Crime legislation is that it criminalizes thought, or motive, and thus that it is incompatible with certain fundamental rights. The answer to this challenge is, usually, that we don’t punish thought/motive on its own. Only when it manifests in independently criminal actions. But, the critic insists, we ADD punishment for thought/motive. Surely, the extra punishment is for the thought/motive?

But what makes a hate crime deserving of extra punishment is not just that it is a crime committed by someone who also harbors prejudiced thoughts. It is not even just that he/she commits the crime because of that prejudice. It is that the crime works as an expression of the prejudice. Surely, that is what make these crimes hurt more. It adds insult to injury, and, as we now know, injury’s caused by viciousness rather than by accident, genuinely hurts more. What this means, I take it, is that a hate crime is not just the criminal act plus some motivation, it is another kind of act. The ”extra punishment” is thus not based on punishing the motivation as an additional extra to the already punished crime, but on punishing this other crime.

The work cut out for us now is to make this notion more clear.