A further note on the moral status of hate crimes

Whenever you look carefully at an important concept, you are likely to find that it covers disparate cases. Especially when you are looking for morally relevant aspects of things (what’s so important about being a person? What’s so good about equality?), you may find that what is morally relevant is not necessarily co-variating with the distinguishing features of the concept of that thing. (Most persons can suffer, but perhaps not all persons, and some non-persons may be able to suffer, to). When looking at Hate Crime from a philosophers point of view, two questions arise:

1) What is ”Hate Crime”? And
2) Are hate crimes worse than parallel crimes (the same act, with different motivation)? If so, why? What makes them worse?

If hate crime is to be an important moral category, these two questions better have some non-trivial connection. What transform a crime into a hate crime ought to be what makes it worse.

Currently, I’m thinking about two quite distinct instances of hate/bias motivated crimes, and whether they should be assigned different moral status. Both rely on the connection between crime, intention and harm. In both cases, we postulate that the criminal has a thought through motivation for his/her actions and that his/her prejudice is actually part of consistent (though false) moral position.

First case: The mistaken racist
This person holds the believe that people of a certain race are inferior, and that they therefore matter less. To beat up a member of this class causes LESS harm than would beating up a person of the racists own group. This view is equivalent to the view held by most people about animals: while we should not harm them, doing so is less bad than hurting a human. This person would argue that since his crime hurts less, proportionality demands that it be punished less. This view seem to have been almost part of the system before the civil rights movement gathered momentum.

Second case: the political racist
This person believes that hate crimes hurt more, and that’s part of the motivation. He/she wants to cause the maximum amount of harm in order to threaten people of the targetted group for participating in society, ultimately to disappear from the neighbourhood/country/face of earth.

Let’s for the sake of the argument accept that these crimes actually cause the same amount of harm. Are the crimes morally equivalent? The mistaken racist does not intend or foresee the greater harm caused by the crime. Indeed, he/she believes it causes LESS harm. The political racist, on the other hand, has no such illusions. If hurting knowingly is worse than hurting unknowingly, the second case is worse.

There are interesting further questions about these cases, however: What is it that the mistaken racist believes? Is it that the crime cause less physical and emltional suffering, or is it that it MATTERS less? Is it a factual or a moral mistake? Should our judgment depend on what would happen if he/she was presented with evidence that in fact there is no morally relevant difference between the suffering of people of different races?
In the second case: does it matter if the political racist believes that everything will be better for both groups if they are separated, and the extra harm caused by the crime is regretable, but instrumentally justified? He/she may even agree that her action should be judged a crime, but that the intended long term end should be counted in her favour, and not be an aggravating factor.

Again: is it the intended harm, the predictable harm, or the actual harm that matters? How important is it whether the racist commit a ”honest” mistake?

Hate Crime: Beliefs, prejudices and aggravating factors

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

William Rehnquist

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

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

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

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

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

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

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

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

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

Morality and Hate Crime

Hate Crimes are wrong. While the ”Crime” bit already suggests as much, the ”Hate” bit pushes it definitely over the edge. We can think of acts that may be illegal, and being of a type that ought to be illegal, but which, under the circumstances, might still be the right thing to do. Or that, under certain circumstances, would be complicated enough to raise important moral questions concerning the status of the individual act. Theft is an example, the moral status of which depends on ones’ conditions and ones’ options. Killing someone perceived to pose an indirect threat is another.

But if you commit a crime against someone because you hate a group to which he/she belongs, justification seems out of the question. There is no more important interest that would be served by your acting on this hatred. And if there were (if you hate people that try to kill you, say), the ”reason” for the hatred – not the hatred itself – would provide the moral justification for the act. It then becomes important which your reason is – the hatred or the reason for the hatred. When Dirty Harry says ”Go ahead, make my day”, he is looking for a proper justification for an act that he would have liked to do anyway. Such justification lacking, DH would have been guilty of a hate crime against Punks, say.

Hatred, in the relevant sense, is rarely if ever justified. Indeed, it has been suggested that the term ”Hate Crime” be replaced with ”Bias Crime” or ”Prejudice Crime” because unlike ”Hate”, those terms imply a fault – either that the belief is false, or that it is based on insufficient evidence. ”Hate” is an unfortunate word in the context, especially if we believe that hate can occasionally be an apt feeling/attitude.

There are additional reasons for preferring such terms: being at the receiving end of hatred is very nasty indeed, nevermind how irrational that hatred is. Being the victim of a prejudice, on the other hand, puts the responsibility squarly with the perpetrator.

Hate Crimes seem to be unproblematically wrong, then: they are unjustifiable. A much more subtle question is: Can they be excused? Committing a Hate Crime may never be the right thing to do (Even if I commit it to ”blow of steam”, thus stopping me from committing an even worse crime later on, this would not be a hate crime:the motivation is not hate, even if hate is part of the explanation of the crime), but can I be blameless for committing it? Can the hate I feel, or the prejudice/bias I manifest – be overwhelming, or can it have grown within me without my knowledge, and without my being able to stop it?

A further reason to step away from the word ”Hate” is that it suggests a temporary emotional state, and comes too close to  facilitating a ”temporary insanity” type excuse. When a hate crime is committed because of the criminal being provoked into a state of rage by the appearance of people of the despised group, it is not this state of rage that we wish to punish, but the disposition that made that rage a likely thing to have happened.

Even if I can not be held responsible for my emotional states (and that is a debatable point), and my emotional states may be so uncontrolled that I may not be responsible for my actions when I’m in one, I AM responsible for being the kind of person who would be provoked by certain things. If you can’t stand the heat, you should move slowly into the kitchen area in order to adjust – perhaps open a window? – and not trust yourself with any sharp utensils just yet.

Committing a crime out of hatred is not like ”temporary insanity”, but more like killing someone with your car when driving drunk.

There are more complicated ”excuse” type stories about hate crimes, however. Explanations that take a much broader perspective on criminals and criminal actions in general, and assign partial responsibility to society, to parents, to friends, co-workers, to chance. If the justification of punishment is retribution, and require pure, unadulterated responsibility, then perhaps some hate criminals should not be punished. Perhaps the only true hate crimes are cases where the hate is in some hard to determine sense YOUR OWN. If, on the other hand, we think that the function of law and punishment is deterrence, rehabilitation, public safety, and there are additional reasons to keep the law simple and displaying equal treatment, then we might have to ignore these stories and continue to view hate crimes as, in essence, inexcusable.