Hate Crimes and the Unfair Distribution of Harm

Hate Crimes Hurt More is the title of Paul Iganski’s 2001 article in the American Behavioral Scientist, and while this title could have done with an added question mark, subsequent work by Dr Iganski and others offers ever increasing support for the central claim. The harm caused by hate crimes is not just the harm done to the victim, but to the group membership to, or association with, which was why he or she was targeted, and to society as a whole. Calculated in mere aggregative terms, then, there seem to be plenty of reasons to prioritize hate crimes, to prevent them from happening and to help victims (primary, secondary and tertiary) cope with the consequences. It is important that we work out why hate crimes hurt more. The reasons may be extrinsic to the crimes in question, for instance, and thus be addressed by other means than criminal sanctions. So far, so utilitarian, so within the wrong-doing – culpability paradigm. Hate Crimes are worse than other crimes if (and only if) they tend to do more harm.

Hate crimes Hurt Less?

Now, while there is evidence for the claim that HC’s hurt more, it is far from complete, and as data collection is far from standardized across nations, it’s hard to sustain the universal claim. So now I’m going to make a bold suggestion: Hate Crimes actually hurt less and that’s what’s wrong with it.

If we focus on the harm done to the victim’s group, there seem to be at least two mechanisms at work:

1) If people like me are targeted, I’m more likely to be next.

2) I feel more empathy for people like me, so when someone with whom I share an important characteristic, I feel it more.

This means that if another group/characteristic is targeted, I’m unlikely to be targeted, and I won’t, presumably, care as much. I guess most people feel like this about gang-related violence. If totally random acts of violence occur, everyone would, presumably, feel equally threatened and thus the harm would be even greater (even if the likelihood of you being next would be inversely proportional to the group within which the random violence occur).

The suggestion here, then, is that hate crimes hurt some people more than others. And that’s what’s so wrong about them. It’s discriminatory, and prioritizing hate crimes would be an act of distributive justice, independent of claims about the extent of harm caused by these crimes. This is in line with an Harel and Parchomosky (On Equality and Hate, 1999) who claim that recognizing the moral significance of hate crimes in criminal law depends on extending the wrong-doing – culpability paradigm with what they call the Fair protection paradigm.

Equality vs Utility

This brings to the surface a very basic conflict in moral and political philosophy: It’s uncontroversial that harmfulness counts, but does equality of distribution of that harm (and benefits) count as well?  If it does, there can be conflicts. Making hate crime a priority may be very costly in terms of police efforts, for instance, and require resources to be taken from investigations addressing other crimes. In principle, we can have a situation where a smaller number of crimes, and a lesser aggregate of harm, takes place but a disproportional portion befalls a minority of the population. That scenario comes in roughly three types, testing our commitment to fair and or equal distribution:

1) The number of crimes and amount of harm befalling the disadvantaged group is smaller than it would otherwise have been – I.e. the total harm is smaller, and the harm caused to the group is smaller than in the original scenario, but the proportion carried is larger. Preferable in absolute terms, not preferable in equality terms.

2) the number of crimes and amount of harm befalling the disadvantaged group is the same, but that of the majority is lowered.

3) The number of crimes and amount of harm befalling the disadvantaged group is larger than in the original scenario.

Our commitment to equal distribution is shown by which of these we find preferable to the status quo, or if none of them are.  If, in a Rawlsian spirit, you want to look at how well, in absolute terms, those are doing who are worse of, 1) is preferable to the status quo.  (The difference principle)

Hate Crimes hurt more because they hurt some more than others

The argument made, and the mechanisms posited above, works, if at all, on the group level. There is a further argument to be made, which works on the level of society as a whole: What’s wrong with (some) inequalities of distribution is that they tend to lead to suboptimal outcomes. That is, if an unfair proportion of crimes hits certain, typically already disadvantaged, groups, this is correlated with societal discord, hostility and impoverished inter-group relationships. It makes successful interactions less likely by raising suspicions.

If this is true, a purely harm/utility driven account of the badness of hate crimes can appeal to harmfulness in absolute terms. This harm may result even if the primary and secondary harm caused by a targeted hate crime is actually smaller than that of a ”completely random” crime, or any other crime for that matter.

Changing the focus to this level does, I think, get the general problem right. And it’s not just a problem with hate crimes, but with hate and prejudice in general (I believe Barbara Perry would agree). It does, however, mean, that demonstrating the relevant harm caused by individual crimes is exceedingly difficult. And this might be right, too: while the direct harm is caused by the criminal, the Hate Crime specific harm may not be, and thus the problem should be addressed not with criminal sanctions but by other means. We could still hold an individual responsible for targeting a group that carries more than it’s share of the burden, however – it would be a crime dependent on the disvalue of unfairness, rather than of harm.

the Philosophy of Hate Crime Map

Should perhaps be framed by areas marked ”Here be Dragons”.

The Philosophy of Hate Crime Symposium

Tomorrow it starts: the Philosophy of Hate Crime Symposium, the 2nd in a series of symposia in the When Law and Hate Collide project. The Symposium, as far as I know, is the first to concentrate on philosophical aspects of Hate Crime and Hate Crime Legislation. (There has been a Law and Philosophy special issue, however, on Hate Crime Legislation back in  2001).

It is also quite unique insofar as, amazingly, I’m hosting it.

It is a symposium about hate. As a counter-weight to that other, more famous,  2400 year old symposium.

Here’s the schedule. As you can see, it’s all very interesting stuff

Monday 26/9

Introduction: How Law and Hate Collide

Mark Cutter, University of Central Lancashire and Christian Munthe, University of Gothenburg

Moving Beyond “Hate” Crime

Barbara Perry, Department of Social Science and Humanities, University of Ontario Institute of Technology

How hate hurts. The moral philosophical basis of ‘hate crime’ laws

Paul Iganski, Department of Applied Social Science, Lancaster University

Targeting Vulnerability: A Fresh Set of Challenges for Hate Crime Scholarship and Policy?

Neil Chakraborti, Department of Criminology, University of Leicester

The OSCE and its Work on Hate Crime

Joanna Perry OSCE

Panel Discussion

Tuesday 27/9

Criminalizing Hate, Criminalizing Character

Heidi Hurd, University of Illinois, College of Law

Hate as an Aggravating Factor in Sentencing

Mohamad Al Hakim, Department of Philosophy, York University

Two Kinds of Expressive Harm

Antti Kauppinen, Department of Philosophy, Trinity College Dublin

Philosophy of Hate Crime – a Conceptual Framework – Morality, Law and Public Policy

David Brax and Christian Munthe, Department of Philosophy, Linguistics and Theory of Science, University of Gothenburg

General Discussion

The symposium will be filmed and made available to the public as soon as possible. Watch the upcoming webpage: www.h8crime.eu

Hate Crime and Interchangeability

Hate and Interchangeability

A key concept in distinguishing Hate Crimes from other crimes is Interchangeability. This seems to be a main feature of group hatred: treating members of the target group as interchangeable: any person belonging to that group could be selected. In their 2002 book Hate Crimes Revisited Levin and McDevitt argue that this means that there is an amount of randomness in these crimes. Any bearer of the targeted characteristic is a potential victim, and this is at least partly why the psychological impact of hate crimes on the targeted group is so severe. Systematically ”random” acts of violence influence the feeling of security of populations more widely then does, say, violence between criminal gangs.

The hate in hate crime is generalized hate, it is not intended to encompass hatred for individual persons based on individual characteristics. But it is not entirely general: the crime cannot be totally random, the victim not, totally interchangeable. Then it will not be a hate crime. Two types of hate motivations then seem to fall out of the hate crime picture

1) The perpetrator does not hate black people, just this person

2) The perpetrator does not hate black people, but all people

If the psychological effects of random acts of violence are such as Levin and McDevitt suppose, then, presumably, the latter alternative should be even worse. Or possibly we are not that bothered by complete randomness (we are very unlikely victims), but by randomness within a smaller group to which we belong, either because we are more likely victims (our feeling of insecurity would then be inversely proportional to the size of the group) or because we sympathize more with victims of our own group.

The Central Park Jogger

In the highly publicized ”The Central Park Jogger Case” back in 1989 these sorts of considerations came into view. The victim, a 28 year old white female investment banker, was jogging in central park when she was assaulted, raped and beaten nearly to death by a gang of youths. Evidence suggesting that she was targeted because she was female, or upper middle-class, poured in, suggesting race-, gender- or class-based hatred. But so did evidence that the gang was looking for a random victim, based for instance on earlier assaults by the gang. Interchangeability, then, plays a double role here:

1) Would they have assaulted anyone coming along at that time?

2)Would they have assaulted any woman/ white person /investment banker?

There is an important discussion going on whether rapes should more commonly be understood as gender-based hate crimes, circling around this question: is the hate involved general enough? Is the reasons for targeting women exclusively reducible to gender-hatred?

Hate and acquaintance

Hate crimes are normally understood as being committed by a member of one group against a member of another, distinct group. Recorded hate crimes tend to be cases where the victim and the perpetrator does not know each other. This is in contrast to other types of crimes (Levin and McDevitt, again). But while this is so, it might be due to how we conceptualize and understand hate crimes. If there is a personal relation between victim and perpetrator, we are less likely to understand the hatred as generalized. Spousal abuse, while terrifyingly common, seems to be understood as based in the particulars of the relation, and thus does not qualify as hate crimes. The interchangeability condition is not satisfied in the ”right” way. Alternatively, it is too difficult to distinguish the general from the particular in crimes within personal relations.

This might mean that hate crime legislation has a blind spot, however. In a recent report from RFSL (The Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights) about ”HBT and Honour”, it is pointed out that many HBT-people are assaulted by family members because of their group membership. Even if this too involves violence between distinct groups, being distinct in one characteristic is compatible with being overlapping in others, such as family membership.

Group hatred may drive violence even within personal relations. Many instances of rape, even in relationships or between acquaintances, may be caused by gender-based hatred. It is hard, however, to show the interchangeability aspect in acquaintance cases. This may also mean, rightly or wrongly, that the self-interested psychological effects of perceived randomness does not occur when we are informed about these crimes.

Expanding the Label

Should the hate crime label be attached to a wider set of cases? Would the victims of assaults within a family, say, or victims of rape, benefit from being recognized as the victims of hate crime? While perceived ”randomness” may mean that more people will feel threatened by the occurrence of these crimes, it might also provide some solace to the victim: the assault was, in fact, nothing personal. It could have happened to anyone.

But these are complicated psychological matters: It depends on how much I identify with the relevant group membership – being targeted because of being female, say, might not feel ”random” at all, but strike at the very heart of my identity. Even if I do feel it’s random, this very fact may make the event ”senseless”, and I may feel even more unfortunate because it happened to me for no particular reason. Some victims may benefit from finding some ”meaning” in the assault, but others may suffer from it. Especially in cases of rape, ”blaming the victim”, even by the victim her/him-self may seem to make sense of the particular assault, but result in more suffering. And making sense of the particular assault by focusing on the characteristics of the perpetrator, especially if the victim stands in a close personal relationship to him/her, may tie them closer together, at great personal cost.

If the Hate Crime label is effective in offering support and protection to especially vulnerable, disadvantaged or frequently targeted groups, there seems to be no objection to expanding it to cover cases which may at the surface look as instances of personal hostility. Whether it is effective in this regard is another question.

The Books

I know, one should not show ones workings but ain’t it pretty? It seems each project I’m sort of in, or propose, or dream about generates a small library. They overlap considerably, which is a good thing considering the limited dimensions of time and space allocated to mortals.

Two Conceptions of Hate Crime

There are basically two different concepts of ”Hate Crime”, corresponding to two different functions. Both are important, both defining a specific category of crime, both tracing particular moral and social problems for a society. One is broader than the other, however, and it is, as we shall see, important to keep them apart. As pointed out by the professor of criminology Eva Tiby; the existence of different conceptions spells trouble when it comes to the relation between registering Hate Crimes, and prosecuting and convicting Hate Criminals. Discrepancy here may well give the impression that the legal system isn’t taking these crimes seriously enough.

The moral status of Hate Crimes

The explicit theme of my earlier posts on this topic has been the moral status of hate crimes. The central arguments concern the claim that Hate Crimes are worse than other, parallell crimes. The category of Hate Crime would, if things were neat, track a ”moral kind” – so that what makes a crime a hate crime is also what makes it worse than other crimes. The reason why we need this category, then, would be to sort out the crimes and punish in proportion to the harm caused or intended, or in proportion to culpability, otherwise defined.

Hate Crime Statistics

But there is another project going on, parallel to this: We want to keep track of types of crimes, quite independently of their moral status. We want to keep track of crimes committed in the night, or in the daytime, crimes committed by young people, and by the old, by people of various levels of education, etc. We don’t want to say that ”night crime” are worse, or better, than other crimes, but it is of considerable interest to find out the conditions with which crime rates vary. So it is with hate: Hate looks like a very likely cause of harmful acts. So how many crimes have this as part of their motive? Is it on the rise, or is it decreasing? How come? Hate and prejudice is also, as pointed out, a big problem for a society, as it influences relations between groups and the likelihood of successful encounters. This just adds to the reasons to keep track of crimes expressing such hatred. Hate crimes are symptoms of something that’s clearly problematic, possibly more so than other crimes.

A distinction with a significance?

Now we have a distinct possibility here: While hate crimes are a significant problem for a society, not every individual hate crime is worse than a non-hate equivalent. It should be included in the statistic, but that does not mean that it should be punished more than that equivalent. At the same time: some hate crimes are worse, because of features non-trivially related to their being ”hate crimes” in the first place. This is important: there is, or at least might be, a more narrow category of ”hate crime” that cuts out a moral kind, and thus should be more harshly punished.

The function of criminal law and its side-constraints

The justification of punishment enhancement for hate crimes obviously depends on the function of criminal law. Is it just a tool to bring about desired effects, or does it essentially involved retribution, punishing the guilty? Is it’s function rehabilitation, or protection of the non-criminal community? Even if we think that we can employ the criminal law in order to protect certain societal values, and promote general welfare, there are certain restrictions to what can be done in the name of the law. For instance, we should only punish people for acts for which they are responsible (more on that in a later post).  The proportionality principle may be such a constraint as well. Some argue that a further restriction is that we are not allowed to punish, or add punishment, for motive, only for intentions. And, as argued in earlier posts: not all hate motivated crimes are accompanied by specific intentions.

If Hate Crime shall make sense as a legal category, a specific punishment seems to be required. But if what’s been claimed is true, not all ”hate crimes” in the statistical sense should be prosecuted as hate crimes. Only registered as such. While this seems intellectually quite unproblematic, there is a clear problem with the kind of ”message” such a practice would send out. One effect of hate crime legislation, it would seem, is that it discourages hate and prejudice in general. Would this function be undermined by recognizing that not all hate crimes should be punished as such?

This, I believe, lies at the heart of the Hate Crime Legislation Controversy

The moral relevance of hate: On motives, harms and expressions

Motive and criminal law

The standard interpretation says that a Hate Crime is a crime motivated by animus towards a group on basis of race, religion, etnicitiy, belief, sexuality, ability etc. The difficulty, and much of the controversy, surrounding Hate Crime legislation, concerns this emphasis on motive. Usually, we are punished for for our actions, occasionally also for our intentions (which speaks to culpability), but not for our reasons or motives. Doing so, the critics argue (See James Morsch The problem of motive in hate crimes (1992)), would 1) introduce a new mens rea (”guilty mind” )into criminal law 2) ”punish thought” and 3) be exceedingly difficult to prove.

Since we don’t have direct access to peoples motives, we have to rely on circumstantial evidence (arguably, this is so for intentions as well). Even if we can find such evidence for hate motive, it’s difficult to show that this was the only or the main motive behind a crime. In consequence, hate crime convictions are rare.

Motive and expression

Are motives essential to hate crimes? Or is it rather a matter of how the crime is perpetrated? Rather than hate itself, it is the hate expressed that convert a crime into a hate crime. ”Circumstantial” evidence, such as words uttered during the attack, would then be more than just evidence: it would be constitutive of the crime as a hate crime. If ”expression” is what is important to hate crime, it’s no longer a problem that circumstantial evidence may be misleading as to the motive of the perpetrator – what’s being expressed is independent of that motive. My motive in saying ”there is a phone call for you” may be to take your seat while your gone, but the meaning of my statement is not altered by that fact (See Blackburn Group minds and expressive harm 2001).

For illustration, consider the table below. On the one hand, we have the question of motive. Let’s simplify matters and say that an act is either motivated by hate or not motivated by hate. On the other hand, we have expression and again: hate expression or non-hate expression. In the table, we find two relatively easy cases, and two difficult ones.

The easy cases

1) Hate Crime 101 In the top left, we find a hate motived crime expressing hate. Painting a swastika on the wall of a Jewish cemetery, say. This is a clear cut case of a hate crime.

2) Ordinary crime In the bottom right, we find the non-hate motivated, non-hate expressing crime. This is not a hate crime. (There is an added dimension not considered here: whether the hate is perceived or not. This is independent of the other factors)

The difficult cases

3)”Concealed hate crime” In the top right, we have a case where I’m motivated by hate, and I select a victim representing the group I hate. But I make it look like an accident, or am persuasive in arguing that my motive is greed or something else. In this case we have the two normal conditions ”crime” plus ”hate motive”. What we don’t have is hate expression. This, of course, means that we have no evidence of a hate crime. But is it still one?

4)”Fake” hate crime In the bottom left, we find cases where the means used for the crime has all the hallmarks of a hate motivated attack, but the motive is something else. To create a diversion, say. Or, even more poignantly: my motive may be to cause as much harm as possible, and I’ve decided that a racist-looking attack is the best way to cause harm and societial unrest.

What matters, motive or expression?

Let’s concentrate on 4). 4) may seem just as bad as 1). There are two lines of reasoning behind that statement. First: if what makes hate crimes worse than other crimes is that they (tend to) cause more harm than other crimes, then 4) is clearly as bad as a ”genuine” hate crime. If the victim and the victimized group thinks it is a hate crime, the same sort of emotional pain, insecurity and suspicion arise. Second: if what makes a crime a hate crime is the motive expressed, rather than the actual motive, 4) is a hate crime, and thus, trivially, as bad as a hate crime.

Taking expression to be essential to hate crime, and thus treating 4) as an example, has certain benefits.

If we think that bringing motives into legislation messes things up, legally and evidence-wise, focusing on expression – by definition publicly available (although it might take som decoding) – is a good replacement. An improvement, even.

We have other options, however. 3) May be a hate crime, but not as bad as 1) and 4). 4) may be as bad as 1), but not a hate crime. Alternatively: if we think 1) is worse than 4) motive may make things even worse. If expressing hatred cause the extra harm, this is one aggrevating factor, but actual hate may be another. We then have three conceptually distinct versions of hate crime – mere expression, genuine expression, and concealment. We thus have the conceptual means to justify different punishments for each of these.

On the badness of motives

I mentioned two cases of ”fake” hate crime. First: I want to cause a diversion while I commit yet another crime, say, or I want something to keep the media attention away from other affairs for a while. This is sneeky, cynical even, but does not make that part of my criminal activity worse. But what if my motive is that I want to cause as much harm as possible? I don’t care about the victims race, I only care about them as ”vehicles of harm”. If I could find some other means of causing even greater harm, I would. This sort of sadistic, yet ”equal opportunity” motive seems on the face of it to be as bad as hate motive. If motives matters, then, and Hate Crime legislation suggest that it might, then we may have to open the door for other punishment enhancements. This, the critics argue, is a dangerous door to open. We may certainly make the moral case that certain motives are worse than others, but this may be one moral value that should not carry over into legislation.

Putting our focus on expression, rather than motive, fits the Hate Crime category into a classic conception of the law as dealing with what people do, rather than with what they think or feel.

Hate Crime Economics

Justifications for punishment enhancements. The arguments in favor of hate crime laws and for punishment enhancement for hate/bias motivated crimes are manifold. They are based in a number of different views on the justification for punishment – be it retribution, restoration, education/rehabilitation, deterrence, instrumental, societal protection or what have you. In his 2006 paper ”A Defense of Stiffer Penalties for Hate Crimes” Philosopher Christopher Heath Wellman argues that all of the usual theories of punishment when applied to this domain come out in favor of punishment enhancement for bias motivated crimes. If true, this is good news – it means that the case is not dependent on a contentious issue on the justification of punishment. We might want to reach a decision on that question anyway, but we don’t have to before deciding on whether to punish hate crimes more severely than parallel crimes.

Hate crimes increasing. There is, however, one argument that is lacking from Wellman’s account, one that I’ve found myself thinking about lately, one that takes as a premiss the proposition that Hate Crimes are on the rise. This is a debated question (see for instance Jacobs and Potter’s book ”Criminal Law and Identity Politics”), because A) There is a very real issue whether the crimes are increasing, or just the reporting and B) the criteria varies between countries and the gathering of data is not fully standardized. We don’t know quite that thing there is ”more” of now is the same thing that there was ”less” of earlier. I will put these question to aside for now, and assume that we are right to worry: Hate Crimes are increasing.

If a type of crime is common, or is becoming increasingly so (Wellman points out that most instances of rape are, in fact, hate crimes toward women, and if so Hate Crime is much more common than previously thought) two factors springs to mind – 1) Attitudes are changing as to find them more acceptable (as with piracy, say), or 2) Deterrence at current rates is not working. I will focus on 2).

Punishments are costs. On the simplified economic analysis I’ve written about before (not because I think it’s correct, but because simplification brings out relevant aspects) Punishments are costs. Crimes are committed when the cost (punishment x risk of detection) is deemed acceptable. If crimes of a certain type is on the rise, and we want to change that trend rather than the law, we need to increase the cost by strengthening the punishment. If our aim is deterrence, we might want to increase punishment for crimes and transgressions in general that are on the rise entirely independently of how ”bad” the crime/transgression is. If this is our justification for punishment enhancement for Hate Crimes, we don’t need to argue that hate crimes are worse in order to reach that conclusion. This justification, mind, has no sense of proportion in it self, but only gains one if the class of relevant criminals has such a sense.

This, of course, only focuses on the cost – benefit analysis of the criminal. We can add such an analysis for the legislating body. Society, say. For society, Hate Crimes are a costly – it worsens relations between groups, it causes emotional and physical harm, it makes successful collaborations more unlikely, it halts societal progress etc. Prisons are costly too, of course, so we need to calculate the likelihood of an enhanced punishment to deter crimes of the targeted sort. If it is likely, we have proportionality between the strength of the punishment and the badness of the crime – if that is derived from a cost we are aiming to avoid.

The cost of prejudice vs the benefits of freedom of thought. Punishment is of course (as Wellman points out) not the only tool to decrease the frequency of crime, and perhaps not the most effective one either. But it is one of them, and definitely one of the most forceful means for a society to express its commitments to certain values. This, in turn may add to the cost for the crime (not only the cost of punishment, but the cost of being at odds with the expressed values of society, say). If we deem it very important, for economic reasons, that hate crimes decrease, we need not make up our minds about what it is in the mind of the criminal that tend to cause these crimes – that is not part of the justification of the punishment. It’s very possible, even likely, that prejudices have great costs. We may then, on this analysis, very well use legislation and dose out punishment in order to discourage prejudices. There may also be costs for legislating thought, of course – sense of freedom of thought is probably very important from an economic point of view. But to enhance punishment on basis of motivation is not to punish mere thought, and thus may not undermine these benefits of freedom of thought.

How much for a hate crime? What is a reasonable policy for ”prizing” things? Is it just to be set by these factors, or is there actually a prima facie, pre set reasonable punishment for certain crimes? If we really can’t stop students from crossing the lawn on campus, should we increase the fine? Is there a limit to the punishment, independent of how frequently the transgression occurs? (Set, for instance, by how important the well-being of that lawn is to us)? In the Hate Crime context – should our policy on how to punish these crimes depend on whether they are increasing or not? Presumably, it should influence police priority. As argued before, this might also be a more effective, or more fitting, means of expressing our attitude toward hate crimes.

Enhanced punishment and proportionality If the costs involved include costs calculated for society, there is a desirable proportionality between strength of punishment and harms caused by the crime. Let’s dwell on this for a while:

The harm caused, and relevant to the status of the crime, is not just harm to the individual, but the group targeted by the crime. This increased feeling of being targeted, and afraid, is part of the harm that makes these crimes particularly wrong. Now: if these crimes are increasing, fear is likely to spread even more. Any additional crime is likely to be taken as evidence, and exemplifying, this increase and thus committing such a crime when the type is on the increase is worse than if it is not on the increase. (Of course, if they are decreasing, any additional crime may postpone the positive impact of these good news, but let’s leave that for now). Thus we can say that the crime caused more harm, is therefore worse, and should be punished more – which brings proportionality into the account again.

There is a slight complication, though: if hate crimes are on the rise the impact of one particular instance may not be that important for the general increase in fear and societal discord. This is parallel to cases where a person is assaulted by a group of people. The total harm to the person may be worse than if there was a single assailant, but the contribution of each of them may be less than if assaulting the person on their own. How should we portion out punishment in such cases? My intuition here is that the total of punishment here should  not be proportional to the totality of harm caused, and thus that the individual punishment should not be proportional to the individual contribution – but to the outcome. If so, individual hate crimes on the increase should be punished more, even if the contribution to the extra harm caused by a type of crime on the increase is not larger for that individual crime.

What is wrong with Hate Crimes? Four contrast cases

Killing Seneca – not a hate crime?

What is wrong with hate crime? Are they worse than parallel crimes? If so, why? This is the central question, and it carries into all areas of hate crime scholarship. If we can answer this question, we would have the means to determine which crimes to include under the term, and what groups of victims and groups of perpetrators are relevant.

The distinguishing mark of hate crimes is in the motivation – hate crimes are motivated by bias, hostility, animus, prejudice, hate of group. This has impact on victim selection – usually, but not always, a member of the hated group. A hate crime may also hit someone only perceived to be a member of the hated group or – and this has often been neglected – someone important to that group. Hatred against homosexuals, for instance, may target some heterosexual gay-icon. It also has important for the type of crime and the intention behind the crime – usually the intention is to hurt the community, and thus selecting means that express this hatred as loudly as possible. Again, there might be cases where the hater only need to ”blow off steam” and thus may select a victim but make it look like an accident, or a normal robbery. In such a case, the motive would influence victim selection, but the intention is not to cause greater harm to the group. It is debatable whether such a crime should be treated as worse than the crime it is made to look like.

The main two theories about the wrongness of hate crime is

1) Hate/prejudice is wrong. The motive makes the perpetrator more blameworthy

2) Hate Crimes hurt more

Both allow for qualifications – is hate/prejudice always wrong? There is debate over whether ”hate” is the right word (it probably isn’t) since it doesn’t actually imply a fault. It might be an attitude that it is always wrong to have, but it may occasionally have the right fit – hating something that is bad/evil for instance. Do crimes motivated by hate always hurt more? Why do they hurt more? Is it because the group to which the victim belong are more vulnerable when targeted because of membership of that group?

Four contrast cases

To coax out some of our intuitions about hate crime, I present four cases of crimes directed at someone because of some characteristic that distinguish them as members of a certain group. The questions we need to ask is: 1) Are all of them hate crimes? and 2) Do all of them have the property that make certain crimes worse than others?

Case 1: The standard

A member of the majority (white, say)  assaults a member of a historically disadvantaged minority (black, say), for racist reasons while making this motivation known to the victim and onlookers. This is a clear cut case of a hate crime if anything is.

Case 2: The ”deserving” victim

A non-descript person attacks a sadist torturer (Because it complicates matters already complicated, I’ve avoided to use the standard example of pedophiles here) because of hatred for sadist torturers. Sadist torturers are, let’s agree, bad people and it is apt to have some sort of negative emotion towards them. Causing fear and withdrawal among other sadist torturers is not obviously a bad thing. Yet – the motivation is hate against someone because of a certain characteristic and, presumably, the sort of harm to the victimized group associated with hate crime occur. Should this qualify? If not, it might be that what’s wrong with ”real” hate crimes is not the ”hate”, but that the hate is, somehow, at fault

Case 3: The New Categories

Moral development often proceeds by inclusion – groups earlier held to be outside the scope of some moral category is recognized as important. Hate Crime legislation arguably begun with a focus on crimes motivated by race, and then included sexuality, religion, beliefs, disability, gender, identity etc. The list seems open-ended and rightly so – it is not a list that is needed, but a criterion. One group of victims that might be included and ”protected” by hate crime legislation is ”Goths”. As an example of an ”alternative” lifestyle. Goths have been victimized because of their group membership, by people motivated by hatred, and their community has felt the impact. (Although, arguably, reactions to crimes may make them stronger by getting support from the rest of society, and by making the group more close knit. Also: Some groups thrive under adversity) What is lacking is the historical disadvantage (they are not ”Goths” in the historical sense), which might make the trauma of victimization less ”deep”, but that is a difficult question to answer. One may argue that the historical disadvantage should not be pinned down to membership of this or that group, but to groups viewed as ”other” in general. In that case, the trauma may carry over. (Note however, that groups are usually quite protective of their distinctive pasts. If targeted because of your affiliation to a soccer team, don’t claim ownership to the holocaust).

Case 4: The Resilient Group

Let’s say I’m targeted because I’m a Stoic. As a Stoic, I don’t mind, and my fellow Stoics don’t mind either. In fact, we mind less than would other victims assaulted for whatever reason. If what makes hate crimes worse is that they hurt more, this is not a hate crime that hurt more, and presumably should be punished less. If what makes them worse is that they are motivated by hate (apt or not), then this is a hate crime in the proper sense and should be punished as much.

Conclusion and further questions

The two rationales for hate crime legislation are both important: hate and prejudice should diminish, especially the ones that tend to be expressed in hurtful acts. And the additional harm caused be targeting someone because of a characteristic that matters to him/her means that it is even more important that these crimes diminish, than that parallel crimes does. It’s bad for the victim, for his/her group and for society in general. But having, and expressing, prejudices against someone who can take it is not as bad as having, and expressing, them against someone that is vulnerable. The predictable harm is not as great, and this should have some impact on how serious we think the crime is. The resilience of the group matters when it comes to what crimes should be prioritized in order to diminish harm. Prioritizing hate crime is even more important than enhancing punishment (and might be a more apt response to what’s worrying about it, while simultaneously expressing society’s rejection of intolerance as much as punishment enhancement does).

One last consideration though: We punish hate crimes against vulnerable groups, say, because of the greater harm these crimes normally tend to have – even if this particular crime did not cause more harm (say the victim died, was viewed as a liability in the community, etc). Some, perhaps most, laws are like that – judging the act by the harm caused by that type of act, not the token. But if we are allowed to make that sort of generalization to disregard the lesser harm caused by this particular act, why not disregard it when the act is of a type that targets a resilient group? Why not say that crimes motived by hate in general tend to cause greater harm, and thus should be judged as worse, even if targeting this particular group (Stoics) does not cause greater harm?

The importance of unconscious prejudices

According to the expressive theory of punishment, the main function of punishment, as of law itself, is to express the values and norms of a society. To insist on certain kinds of behavior, and to disparage others. Ideally, the laws reflects the values of the people currently making up that society, as well as those tested through time, by experience and debate, from the original lawgivers (the drafters of the constitution, say) onwards. When you commit a crime, the punishment tells you and others something about how society feels about it.

When it comes to Hate Crimes, this aspect is very important: Not only do we express norms that prohibit assaults, but  we prohibit assaults motivated by, and expressing, prejudice. (In fact, a case can be made that it’s the expression of prejudice, and not its motivation, that make hate crimes worse). Even if we do not punish prejudice as such – we have other ways of expressing that norm – we punish its manifestations. And part of the motivation for doing so is to disparage prejudice as such. We could say that we punish the criminal for the hate-motivated assault, thus expressing a norm against such acts, but the punishment also sends a message against hate/prejudice in general.

Now, does hate crime legislation reflect the values of society? Are people that committed to tolerance and diversity?

The point of telling the criminal what we think is presumably linked to his/her current beliefs. So what does the hate criminal believe? What do the racists among us believe about the attitudes among the rest of us?

Legislation, government and NGO campaigning and at least some media content explicitly express commitment to diversity and resistance to racial prejudices. I take it that most ideological hate criminals realize that they are a minority, and that is part of what makes them dangerous – they are in the minority, feel threatened, disregard certain societal values and believe that they are in the right. Telling them that hate crimes wont be tolerated is hardly news, and they are unlikely to care. The expressive function, then, would be failing with regard to the criminal, but perhaps succeed with regard to the broader population.

Some racists presumably believe that, in fact, most people agree with them, even if they (we) don’t quite realize it. They blame political correctness for our current liberal and multiculturalist ”opinions”. This is very likely a persuasion that drives current populist right wing politics. They believe they only need to stir the inner racist in all of us, and that people, when it comes down to it, actually agree with them.

I’m pretty sure they are wrong about our conscious values. But are they wrong about us altogether? Among others (and more forcefully than most) the psychologist Jennifer Eberhardt argues that our prejudices are often unconscious and even at odds with what we explicitly believe. Even people who don’t associate black people, say, with criminality, tend to be primed by viewing black faces to more quickly recognize images of weapons, for instance.

If such findings reflect a broad societal phenomenon, we may ask what our values are, and how deeply committed we are to tolerance and diversity. Most of our prejudices never makes it to our conscious minds, but they still influence our judgments and behaviors. Without noticing it, tend to look for evidence that confirms our unconscious beliefs, and disregard others. This is why it is so important that even the most confirmed enlightened mind among us take a look at not only the content of their beliefs, but the inner workings of their decisions and behaviors. Most votes for the right-wing parties are not directly motivated by racism, but by the rationalizations that unconscious racism make us more likely to accept.

That a belief is unconscious does not mean that it reflects a deep fact about us. Quite the contrary – the test of whether an unconscious belief is ”truly ours” is to see what happens when it becomes conscious and tested against evidence and other beliefs. Do our conscious, considered values take precedence? Or do we adjust them to fit it our previously unconscious beliefs? What does happen when we become aware of such prejudices presumably depends on further psychological factors, but also by situational factors. Its uncomfortable to face ones failings, so perhaps there is a bit of pressure to deny that it is a failing. If people around you have a theory and a political program that incorporate your prejudice, there is some appeal in accepting that theory and that political program. It’s very important, then, that we have the means to address these prejudices when they surface, and someway to work with them.

If we are serious about our commitment to diversity and tolerance, we need to confront prejudices on all levels, and express that commitment in no uncertain terms in order to counter the populist appeal mentioned above. As has been remarked for instance by George Lakoff, liberals rarely want to address the unconscious by unconscious means. We are suspicious of such manipulation, and prefer the open and honest debate and believe that ”the truth will set us free”. But it’s much preferable when our values reflect our dispositions and emotions all the way down, when we not only believe and treat people of different races that they are equal, but instinctively react that way too. This may mean a lot more work than mere conscious conviction involves.

Does expressing our commitment to these values by enhancing punishment for hate crimes have an impact on unconscious prejudices? Or does it move our attention from the Reasons Why we should not be biased to Reasons having to do with fear of punishment? If it matters what the reason is why a criminal commits the assault, does it also matters why someone refrains from committing one? These are questions for another post.