On caricatures, freedom and the nature of assholes

I have to admit, I’m not overly fond of caricatures. Never have been. I guess sometimes they manage, just like a good metaphor does, to capture something important about its object that was not as obvious before. The thing that a caricature brings out about the object is usually intended to render it ridiculous. Most things are partly ridiculous, of course, it’s almost never a useless way of viewing a thing. But it becomes particularly useful if the thing, or person, or group,  is in power, is pompous, is revered to an unreasonable extent. It becomes less so, even harmful, if the thing or person, or group, is already despised, disenfranchised, already treated as ridiculous.

The reason why I’m not overly fond of caricatures, or metaphors for that matter, is that they rely on putting emphasis on certain things at the expense of other things, and the result, the ”translation”, as it were, depends on whether that serves to correct the received view in order to reflect the actual importance of those things. Caricatures have a history of ridiculing power, and that history is well-rehearsed these days. But they also have a history of serving power. Of dehumanizing people it deems of less importance, which makes those people even easier to disregard, or even to kill.

There is an argument that says that we have freedom of speech in order to protect precisely the sort of statements that we do not like. This is spurious. It may be true that the extent of freedom of speech can be measured by exactly how offensive, vitriolic, hateful, debasing, threatening expressions that it allows, but it hardly seems to be the point of having freedom of speech. Some people will say that freedom is a value in itself. Others, like the more often quoted than read J.S. Mill, say that freedom of speech is an instrumental value, which serves a function. And it can be limited when it fails to serve that value. On this account, we can say that freedom of speech is a matter of costs and benefits. The offensive can occasionally be a benefit, the hateful very rarely is, but we may want to preserve the right to make hateful assertions because the total value of relatively unregulated speech is positive.  The benefits may outweigh the costs. (It should be noted that this analysis could, and, I believe, should, adjust for fairness. If the costs and benefits are unfairly distributed so that the worst off bears the greatest burden, the cost may be unacceptable even if it is outweighed in absolute terms). Hate speech laws tend to draw a line between the offensive (which is allowed) and the hateful (which is not), but some legal scholars and a lot of libertarians believe this distinction fail to track anything of moral importance.

Now. In moral philosophy, the notion of an asshole is quickly turning into a technical notion of considerable use. An asshole is a person that does not infringe on other peoples rights, but does everything he/she can to reap the benefits for him/herself, and nothing to help others. It is the kind of person that uses freedom of speech to say all the worst things he/she is allowed to, while contributing nothing to a worthwhile discussion. The behavior of such people tend to be on the cost side in the cost/benefit analysis of a right. Assholes are on the cost side, and when they become too many, the instrumental value of certain freedoms decreases. At the same time, the fact that we tolerate them (even encourage them in certain contexts) may be a testament to the strength of our society, our resilience. Assholes also serve the considerable function of demonstrating the gaps in our systems and institutions.

I’m going somewhere with this. I have not made myself familiar with the works of Charlie Hebdo. I don’t know french, and I’m not sufficiently familiar with the cultural and political context. If I understand things correctly, their tendency has been to make fun (if that is the right word) of power and pompousness in all it’s guises. It certainly is no straightforward instrument of power. But equal treatment does not amount to equal effects, especially when the people and groups treated have different social standings to begin with. Some of their work may render things ridiculous that we all benefit by viewing in that light. Some of it may serve to dehumanize and ridicule people that are already being discriminated against, whose social standing in the context is low. The latter is an unmitigated cost, and it is the work of assholes, in the technical sense described above. Caricaturists will often tend towards asshole-hood. And it is possible that they should, that it is for the good that there are people, and publications, like that. But it would probably be unbearable if we were all like that. And while the extent of free speech may be measured by the worst things it allows, the value of it must be measured by the best things it allows that would otherwise have been banned.

The limitations of the ’more speech’ solution

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 Hate Crime Concept(s)

A few months ago, the German partner of the ”When Law and Hate Collide” project hosted a splendid symposium on hate crime.

You can find all the presentations on youtube.

My presentation on the Hate Crime Concept(s) (the spoiler is in the title: there might be several such concepts) is here.

The slides, if you find that you need to look at something a little less distracting than me moving about nervously, are here: The Hate Crime Concept(s)

Deterrence and rehabilitation

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.

The Conflict

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.

Punishing causes

”Tough on crime, tough on the causes of crime”, remember? I remember very little of the substantive debate but I do remember that it spurned a debate on the use of non-committing slogans in political speech. The immediate appeal of slogans should not be dismissed as a mere trick, however.

There is a quite obvious and quite relevant issue hidden in the slogan: How does, or should, our approach to crime relate to our understanding of, and approach to, the causes of crime? Presumably our toughness or softness on crime should be modulated on the basis of our perception of the causes in question because clearly, all crimes do not share causal histories and clearly, this matters to how we assign responsibility.

Quite generally, causes are relevant to responsibility and to criminal punishment as punishment is meted out on basis of, and in proportion to, the harm agents cause. A highly valid defense to the allegation of murder is to say that you didn’t cause the person to die. Or, actually, accurately and more precisely: that you didn’t do it. To murder someone is not only to cause the death of another, but to do so while trying to do so.

The most obvious causal component of relevance to responsibility/culpability is the decision. We are condemned for the things we decide to do, and decisions have consequences.  Reasons and considerations are presented to us, or thought up by us, and then we make a decision to act on some of them. We are then held responsible for at least the causal consequences that we had reason to believe would follow. But decisions are not where causal chains end. And while deciding to do something that will cause harm when there is no reasonable amount of compensation is surely blameworthy in it’s most paradigmatic form, it’s not the end of blameworthiness either.

Yet, there are further moral judgments to be made which goes beyond the decision. For instance: what considerations did you act on? How was the case for and against acting presented to you? Was it greed? Was it vengeance? And now the question becomes: can we add to a criminal sentence on the basis of pre-decision causes? We seem to be able to subtract from a sentence on basis of certain causal pre-cursors, such as ignorance or a mental episode. But can we add?

Now to the hate crime context. For theoretical reasons as well as practical ones further down the line, it’s important to distinguish between the reasons for the support of hate crime legislation and the justification of that legislation. My reasons to favor higher taxes may be that I would gain from it in the long run, but that’s not sufficient as justification as tax rates are not in place to satisfy my interests. It does mean, however, that I’m more likely to look for, and find, further reasons for higher taxes.

It’s very likely that support for hate crime legislation is at least in part grounded in the intuition that some pre-decision causes are worse than others. We dislike, and we are right to dislike, prejudices, vengefulness, greed etc. But it is not clear that we should punish on the basis of the moral objectionableness of pre-decision causes. Even when we are somehow responsible for having become bad people, we can’t be punished for being bad people, only for doing what bad people tend to do, and which makes them bad: harm. If there are other justifications, we should identify them. But we should be very clear that our acceptance of those justifications is not wholly founded in our independent, warranted, but legally invalid, moral stance. Or, of course, we must make the case that these pre-decision causes are reasonable grounds for punishment enhancement. Which means much more work.

Two lessons to draw from this:

1)We may maintain that decisions are where culpability starts, but that the picture is more complex then previously recognized. Decisions may be judged as worse not only on the basis of the harm intended, caused or risked, but on the considerations that was deemed sufficient for the decision to be made. To treat a prejudiced view as a decisive reason, then, is worse, for instance, than treating greed as such a reason because it is a worse reasons. Still, we are not punished for this reasons, but for treating it as a decisive reasons. (Leaving, for know, the question whether the cause and/or reason for our accepting this consideration as a (decisive) reason should influence the extent to which we are culpable…)

2) Pre-decision causes are clearly relevant for effective preventive measures. We should concentrate a lot of effort at counteracting them and the most effective means may not be punishment enhancement, or any other means available to the criminal law.

Being ”tough” on causes of crime doesn’t necessarily, or primarily, involve punishing people for having certain beliefs attitudes or dispositions, but effectively counteracting the conditions under which such beliefs, attitudes or dispositions arise.

The christmas day hate broadcast

’this the season and all that and whoever is on the non-news part of your state-subsidised radio or television is instantly promoted to the status of National Treasure. And about bloody time.
To be serious for just a minute, though (even though I don’t really want to): on sunday the 25th, swedish radio P1 will broadcast an episode of the soaringly popular program Filosofiska Rummet. This episode features yours truly in conversation with the magnificient police officer and educator Jeanette Larsson and professor of Criminal Law, Per-Ole Träskman. The topic is hate crime, it’s nature and moral status, and the point and justification of hate crime legislation. I may sound like a sceptic on the show, but that’s mostly a group-dynamics kind of thing.

Future-oriented and customized punishment

Legal punishment is normally justified by appeal to Wrongdoing (the criminal act) and Culpability (”the guilty mind”). These are features focusing on the perpetrator, which makes sense as it is he (nearly always a ”he”) who will carry the burden of the punishment. We want to make sure that the punishment is deserved.

But it is also typically justified by appeal to societial well-being. To protect citizens from harm, to promote the sense of safety, to reinforce certain values, to prevent crime by threatening to punish, to rehabilitate or at least contain the dangerous. According to so-called ”Hybrid” theories, punishment is justified when these functions are served, but only when it befalls the guilty, and in proportion to their guilt (this being a function of wrongdoing and culpability). Responsibility/culpability constrain the utilitarian function. Desert-based justification is backward-looking, while the utilitarian, pro-social justification is forward-looking. (Arguably, the pro-social function is dependent on the perceived adherence to the responsibility-constraint.)

Neuroscientist and total media-presence David Eagleman had a very interesting article in The Atlantic a while ago, pointing out that revealing the neural mechanisms behind certain crimes tends to weaken our confidence in assigning culpability. Rather than removing the justification for punishment, Eagleman suggests that we move on from that question:

Continue reading Future-oriented and customized punishment…

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 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

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.