First, there are two initial question regarding how to categorize this event: Was it a hate crime? And was it an act of terrorism? The answer seems to be straightforwardly ”yes” to both. Statements reportedly made by the suspect, the symbols he wore, the choice of victims and place, the reported premeditation, etc. all speaks to this being a racially motivated crime, i.e. a hate crime as well as a crime committed with the intent to bring about societal change or, rather, to stop societal change, or to bring things back to the way they were, i.e. an act of terrorism. I will put most emphasis on the hate crime angle, as it is my area of expertise.
Hate crime. The Charleston case is one. On nearly every conception of what an hate crime is, if current information stands, this qualifies as one. Some commentators has said that we need to await the result of the full investigation, and that is always a good idea, but it would be surprising if that investigation would undermine what seems to be a blatantly clear cut case. There are a number of hate crime conceptions, that only partly overlap. The most common idea is of hate crimes as distinct by motivation, i.e. the reason why the perpetrator committed the crime. But in fact, many jurisdictions interpret hate crime as a case of intentionally selecting victims from a protected class, and puts less weight on the reason why the crime was committed. This is an advantage in two ways; it does not require proof of motive, and it does not rely on the controversial notion of punishing motive. A third conception understands hate crimes as defined by intent; the intent to strike fear in the targeted community, for instance. On this account, hate crimes are more or less a species of domestic terrorism. A fourth identifies hate crimes as crimes expressing a certain message to the targeted crime. (The expressive account has however been deemed unconstitutional in the US due to its conflict with the 1st amendment). The Charleston case seems to qualify as a hate crime on all these accounts. It seems to be hate motivated, the victims and place were choices because of their racial significance, the intent was (apparently) to send a message and to instigate race war.
That being said, South Carolina does not have a hate crime law. This in itself is worthy of note. The development of hate crime laws in the US was preceded by the civil rights movement, and is generally held to have the differential treatments of former slaves as second-class citizens as its background. The fact that South Carolina has not taken this measure, in conjunction with factors like flying the confederate flag and naming streets after confederate generals, means there is a long way to go. That SC does not have a hate crime law is not the end of the matter. The case can, and it looks like it will, be run as a federal case. Since the Matthew Sheppard and James Byrd Jr Hate Crime prevention act was signed into law in 2009, federal authorities have extended abilities to handle cases the states are unable or unwilling to take.
This is important for two reasons. First, the federal government having to step in in order to make justice possible in a race based case in a Southern state says something about how America is divided. Second, in order for this to be run as a hate crime case, it must be run on a federal level. But hate crime laws are penalty enhancements laws. And given the gravity of the case, it is quite possible that the penalty, if it had stayed in South Carolina state court, would have been the death penalty. In fact, the probability that it leads to the death penalty in a federal court may be lower. Which means that in order for it to be judged as a hate crime, it may lead to a lower penalty being given. On this account at least, this case can become legally interesting.
Why are hate crimes worse than other crimes? This was a massacre, a mass murder, an act of terrorism. What is the significance of naming it a hate crime? As I said, hate crimes laws normally take the form of penalty enhancement statutes. This is because they are deemed worse than ”parallel” crimes, i.e. similar crimes absent the hate element. There are a number of reasons why, some having to do with the discriminatory nature of these acts, others with the maliciousness with which they are being committed. The most common account is harm-based, however. Hate crimes, according to influential scholars like Paul Iganski and Frederick Lawrence, hurt more. The primary victims typically experience more psychological harm when the crime is hate motivated. In a case like this, when the outcome is death, that is not relevant. But the additional harm also exist on the victims group and on society in general – it may, for instance, worsen the relations between groups. Both these accounts are relevant here; the targeted group is reminded of the risk it is at, and the tension between groups hightened.. Indeed, that was the expressed intent of the offender – to start a race war
Before moving on, lets just say this on penalty enhancements: Say he is sentenced to the death penalty, and that penalty enhancements cannot come into effect. Still, it is not pointless to treat it as a hate crime. Indeed, many victims and victimized group say that the penalty enhancement is less important than is naming the motive in these cases. Recognizing and condemning these types of crimes is the more important part. Hate crime laws has an expressive function.
So, was this an act of terrorism? Again, the answer seems to be straightforwardly ”yes” by most definitions. But perhaps not all. What makes an act of terrorism is the intent (together with means reasonably fit to purpose) to cause fear and force societal and/or political change. According to one statement, Roof wanted to bring about a race war, which is certainly one way of doing that.
What complicates matters is that Roof, much like the Norwegian terrorist Breivik, seems to be a conservative terrorist, i.e. one that wants to stop change. Or to change things back the way they were. And this may be one of the reasons why he was not immediately and universally being called a terrorist. The ”typical” terrorist is someone somehow alien to the system which he/she wants to change. The thing that people keep pointing out is that this act was the extreme expression of white supremacy, and that this ideology is actually not that alien to the dominant culture. Many commentators that wants this branded as an act of terror, also thinks that the racism expressed is not uncommon, indeed that these attitudes are entrenched in society, part of the norm. There is some tension between these two aspects: Do we want to portray him as somehow normal, which means that the problem is much, much bigger than the risk of these kinds of attacks? Or do we want to describe him as something ”other”, something alien to our system? The reluctance to accept something entrenched in ”our” culture to be capable of terrorizing that same culture is probably one of the reasons we turn to questions about mental health in these cases. Why would a person congruent with the dominant culture in what is being described as a racist society otherwise go to these lengths, take this sort of risk? In the absence of a deep cultural divide between him and us, we need mental health issues to distance ourselves from a man capable of such heinous crimes.
The reasons why it might not be understood as terrorism is that we do not yet know whether there is any clear organization behind him – which is typical of what people think of as terrorism. Of course, the need for such organizations to facilitate acts of terrorism is considerably weakened by the internet, which make it possible to cherry-pick an ideology, a support base, and a methodology to suit you. Secondly, that the criminal is (as Åsne Seierstadt stated in her book about Breivik) ”one of us”, i.e. not that different from normal members of the population. This is significant as it means there is no discernible ”other” to direct retaliation towards. Terrorist threat is ”supposed” to come from outside, from people with no other route to a position of power. Rather than describing it as an act of terrorism, then, it could be branded as an act of oppression.
The significance – Charleston as a symptom
What does this act mean? What does it signify? Is it a sign of things getting worse, and this is just a symptom of growing racism and racist rhetoric? Or (counter-intuitively) may it be a sign of things getting better? Racist offenders may find their justification in others expressing the same views. But they also find their justification in thinking of themselves and the society and values they care about as being somehow threatened. While hate crime criminals are often part of the majority, it is when that majority think of themselves as loosing their privilege that the need to commit a crime to keep that privilege arise. Lynchings were often a reaction to former slaves behaving in a way that former slaveowners and other whites thought of as unacceptable for a black person. Similarly, hate crimes are often understood as a response to people of the hated group stepping out of their place, and there being no other way of putting them back. Segregation, privilege and power means rarely having to worry. But, of course, privilege should be threatened. People like with the beliefs that Roof seem to have should be feeling threatened, because the order they want should be collapsing. If this is how it works (note that this is just a hypothesis), a rise in these types of crimes is likely to occur as things becomes better at a more everyday, ”structural” level.
A tale of two hate crimes
Imagine that I am physically assaulted on my way to work because of my membership in some of the groups to which I belong. The white, the middle-class, academics, the city-dwelling, the fairly tall, the heterosexual or what have you. Imagine what, in this very unlikely event, would happen to me, given that I survive the assault and am not hospitalized.
I would report the crime to the police, who would hear my story and do whatever it could to track down the assailant. Then I would probably call in sick, stay at home for a some period of time, be afraid to go out, have difficulties sleeping etc. The social security system, and the social ”safety net” would soon spring into effect, I would receive a large share of my salary, my employer is very understanding, and would keep in touch but not press me to come back to work. My family and friends would gather round, make sure that I remained safe, fed, got the opportunity ta talk things through. I may never regain my complete sense of security and confidence, and may fear renewed victimization due to the manifested presence of violence inducing bias towards me in some capacity.
Now imagine a person of Roma origin from eastern Europe, begging outside a convenience store in the middle of the Swedish winter. Imagine what is unfortunately not that unlikely, that person being attacked by a hate motived assailant. What would happen then? First, that person may hesitate to contact the police, due to earlier encounters (eviction from a camp, say), fear of being harassed, registered, of being picked up on the police ”radar” as someone associated with crime and, minimally, not expecting to be taken seriously. So there is, at the very least, a hurdle to clear for any kind of social security or victim support to kick in. Further, there is very little by way of a home for this person to return to, and there is no social security, no compensation for lack of income. The situation in the homeland, which it is expensive to get back to, is not much better. There may be family and friends around, of course, but these too have to earn their living in this makeshift fashion, and they are equally at risk of being targeted.
Risk and disadvantage
Now, there are two very relevant differences between these two cases.
First, the latter sort of attack is much more likely to take place. Even when it doesn’t, people of Roma origin, particularly recent arrivals in the exposed situation of being forced to spend time begging, live with the constant risk of being assaulted, and with the constant presence of reminders of this risk. (Verbal assaults, campaigns from populist right-wing parties). Whereas I may receive a handful of group-based insults over a life time, these people receive them every single day. Besides the fact that such assaults, when they occur, have terrible consequences, they also serve as an reminder of the constant risk of assault of which they are manifestations.
Second, the difference in impact described above means different amounts of harm caused. The fact that I have access to a marvelous social safety net makes it the case that a lot of resources are concerned with minimizing the harm of such an attack. This is hardly present at all in the case of the Roma immigrant above. This is to say, they are at an disadvantage in almost any conceivable way.
Some hate crimes are worse than others
Committing a crime against a person belonging to a thus disadvantage group is, arguably for that very reason, worse than committing a similar crime against me. Doing so because they belong to that group betrays a particularly heinous motive. Both crimes above are motivated by hate/bias, but the latter is clearly worse because of the relative social standing of the victims. If so, it is not just the hate that matters, but the fact that this hate purposefully targets people that are already at a heightened risk for this sort of attack, who lack comparable resources to minimize harmful effects (including reduction in income), and that have a minimum of support when being attacked.
It is bad enough to attack these people at all. To attack them because of their membership in this group that is thus at disadvantaged, is simply beyond the pale.
Hate crimes and harm
In a forthcoming paper (in a symposium section of the Journal of Interpersonal Violence, edited by me and Christian Munthe), Paul Iganski and Spiridoula Lagou point out that hate crimes do tend to hurt more than other crimes, but that some hate crimes hurt more than others. This is an important, and yet under-researched, matter. If the seriousness of a crime is proportional to the harm involved, such matters are important. In particular, it is important for which groups should be included, and be made a priority, in the enforcement of hate crime legislation. The sort of contrast I described above suggest that it is not simply the hate/bias element that makes these crimes particularly serious, even if that is a contributing factor; it is also the fact that some groups are more frequently targeted, and that some groups are at a disadvantage when it comes to resources to cope with victimization.
At the fourth meeting of the research project ”When Law and Hate Collide”, which took place in Brussels in 2012, we recorded a radio documentary. It features the project members Michael Salter, Kim McGuire, Christian Munthe, David Brax (that’s me), Caroline Bonnes and Michael Fingerle along with noted experts Paul Iganski, Henri Nichols of the FRA, Paul Gianassi from the UK Ministry for Justice, Joanna Perry from OSCE-ODIHR, Jackie Driver from the Equality and Human Rights Commission and UCLAN’s Bogusia Puchalska.
I identity six types of justifications for penalty enhancements at 10:40 and the possible criteria for inclusion as a protected group at 22:47
And here it is:
For the last few days, a police scandal has been dominating swedish media. The scandal concerns a file including a very large number of people of mainly Roma origin which the press calls an ”ethnic registry”, which is clearly a rights violation and in all likely to be a punishable offense, while the police (some of them) calls it an ”analytic file”. The content of the file/registry is not entirely clear – and lets be thankful for that, police files should not be open access – nor is the reasoning behind it’s existence or it’s extent. If you believe the police, it all started with an investigation and the collection of names of people connected to it. This, of course, is fairly unproblematic. There is no fault in gathering data on people of Roma origin connected to a suspected crime, as long as they are not collected because they belong to that group, unless group membership is clearly relevant to the investigation. Similarly, the police is not allowed to have a registry of people on basis of political conviction unless their membership in a certain political group is germane to the investigation. While this qualification seems straight-forward, it means a very large gray area. In fact, it’s probably the gray area where most rights violations takes place. I’ll return to this matter below.
At some point, the file started growing to what’s seems to be an unreasonable file, not warranted by the objective of the investigation. For example, it involves a large number of children, and some deceased people. Again: there may be sound reasons for collecting data on whether a suspect has children, and other family or association based relations through deceased persons. The problem arises where the collection of such data becomes unreasonably extensive and ulterior motives can be inferred.
Discrimination by proxy
A registry on the basis of ethnicity is clearly unlawful, and violates the anti-discrimination principle. A clear case of such a registry is one which includes only members of a certain ethnic group because they belong to that ethnic group, and also includes all such members which the people responsible for the registry knows about. The registry/file involved in the scandal is not such a clear case. A clear case of a nonproblematic registry/file is one which concerns a suspected crime and collects data of people of a common ethnic origin clearly relevant to the investigation, but in which there ethnicity is not noted as such. The registry/file involved in the scandal is not such a clear case either.
A registry may violate the anti-discrimination principle in other ways, however. Even if the police is not collecting data on basis of ethnicity, they may collect data because of ethnicity. I.e. a proxy can be used. In the case, the proxy used seems to be family ties, very extensive family ties. As mentioned, you may collect data about family ties, but not if the reasons why you do so is based on your idea about the ethnicity of the people involved.
The importance of Reasons
The point is this: In order for the registry/file to be discriminatory, it’s not necessary that it’s a clear cut ethnic registry. It suffices that the extent of the file, or the method used, is one that wouldn’t have been employed were it not for the ethnicity of the people involved. In other words: if the reason why you take family ties to matter to a large extent is your idea about the importance of family to people of that origin to be relevant to the investigation when it isn’t. This is complicated, and relates to a well known phenomena from the social psychology of prejudice: Discrimination often proceed, not by taking ethnicity, sexuality, gender to be a reason in itself, but by you taking these things to be a reason to look for other reasons for disparate treatment. If, for instance, you are hiring someone and you choose your non-ethnic criteria on basis of which ethnic group you want to hire from. You thus provide post-hoc rationalization of your decision which does not coincide with your actual reason for it.
Clear cases, criteria and explanations
As mentioned previously in this blog, there is a problem with treating to obvious cases as exemplars. It makes it difficult to deal with the less clear cases, where some of the distinguishing marks of the obvious cases are missing. In the scandal, a clear case would be a registry based on ethnicity alone, with no other rationale. But as mentioned, this is not necessary to make it a case of discriminatory conduct. So what is necessary? In the case above, the sort of evidence germane to the problem will concern the intents of the police officers involved, but this will be notoriously hard to come by directly. The more indirect route will come through a careful investigation and an informed judgment regarding the reasons why the investigation took the form that it took, and involve an appeal to the best explanation. For a philosopher, at least, it seems that the way to do this is to compare with files concerning similar cases where the people involved have other, or diverse, ethnic origins. If it’s standard procedure, there’s no particular problem with this case (there may be a general one, though). If it isn’t, someone needs to provide a very good explanation.
It would seem that semantics is the least interesting aspects of things like islamophobia and antisemitism. This may well be the case, but if you’ve ever happened to investigate into anything, you know that the least interesting aspects of things are often quite crucial. While linguistic-turn era early 20th century Oxbridge-type philosophy is often caricatured as claiming that semantics is everything that matters, the more accurate claim made is that semantics matters too.
It is, at the very least, noteworthy that while antisemitism and islamophobia are treated as examples of the very same attitude (a negative one) with a variation in object (Jewish people/Muslims), they take different lingusitics forms even on the attitude side. Why use ”anti-” in the one case, and ”phobia” in the other? Are they interchangeable? It’s clear that they are often used as interchangeable, but this may hide an important aspect: There’s a distinction at work which connects to different modes of negative attitudes and behavioral responses. These modes afford different types of explanatory schema.
Aggression and Aversion
The word ”anti-” connects to aggression, the word ”phobia” to aversion. These are both negative reactions, but aggression is connected to the behavioral response of approaching the object, while phobia is connected to the behavioral response of withdrawal. If I have a fear of spiders, I don’t primarly seek them out, even to kill them, unless there’s another way to avoid them. I’m sure there are people who are anti-spider, and will seek spiders out to kill them, but the groups of spider haters and spider fearers are probably just barely overlapping. The relation between fear and hate is not straightforward. Because of this, fear-based explanations of acts of aggression are incomplete at best. You always need a further explanatory step to show why this instance in particular provoked an aggresive response, rather than an act of avoidance.
If the semantics of ”phobia” and ”anti-” reflects this distinction, it suggests that the common perception is that Jewish people are attacked as a consequence of anti-semitism, whereas muslims are avoided as a consequence of islamophobia. Of course, both groups suffer from both types of responses.
The distinction between aggression and avoidance is further of interest as they neatly divide the problems of racism up in two piles, it’s relatively easy to target aggression with the use of criminal law, but not so easy with avoidance (Discrimination laws targets a very limited set of the latter). Yet avoidance is probably the greater problem, as it is likely to account for most inequalities and as much of the perpetuation of antipathies between groups as the aggression does.
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.
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.