Prejudices, emotions and misattributions

In my earlier forays into the theory and science of emotion, there was one thing that struck me as extremely potent as an explanation: misattribution. Misattribution (frequent appeal to which is made by social psychologist Jonathan Haidt and colleagues) often goes like this: You have an emotional reaction, positive or negative, and you look for a reason for why you might have this reaction by scanning the environment for salient differences that might account for it. Haidt calls this ”post-hoc rationalisation”.  Post-hoc rationalisation results in misattribution when the reason you take to account for your emotional reaction does not correspond to what in fact caused it.

This is a quick, often unreflected, process and it seems to be quite widespread. But people differ enormously in what type of rationalisations and attributions they tend to make. Some will often blame their own flaws for any negative reaction to a situation, others will blame the food, their company, the climate, or just the nearest person. The process is also often very useful: we need to explain our negative and positive reactions, and we need generalised explanations if we are to make plans for how to live our lives if we are to avoid these unpleasant experiences and make the pleasant ones more frequent.

Now, our emotional reactions are caused by a vast combination of factors. Some we are aware of, or can become aware of, some are welcomed, and some we are reluctant to accept. I like avant garde jazz, but I also very much like the fact that I like it. It’s part of my self-image. This being true, any unpleasant encounter with avant garde jazz tends to be blamed on the circumstances. In fact, even if my last five, or ten encounters would have been unpleasant, I would be unlikely to attribute this to my tastes having changed.

If you are prejudiced against certain people (this based on group or individual characteristics), you are likely to attribute the valence of any negative emotional reaction you have encountering these people to them. If you are unaware of your prejudice, or unaware of that it is a prejudice (perhaps because you are reluctant to accept it), you are likely to try to find some rationalisation of your reaction that correspond to your considered view of what constitutes a proper reason for an emotional reaction.

Discrimination very rarely proceed by someone being ruled out on basis of group membership. All stops pulled apartheid is very rare. Rather, everyday discrimination proceed by people having an averse reaction to a person or situation, and then looking for something that could be treated as an acceptable reason to disfavour that person.

Let’s say I am interviewing people for a position as a research assistant, and one of the applicants is female. Let’s say I’m prejudiced against women, but I don’t think I am. So I have an averse reaction (this is my prejudice being manifested) and I start looking at the applications for a reason why I might have this reaction. And it turns out the female applicant’s typing skills are somewhat worse than the male applicants. ”Ah – typing! Typing is very important for a research assistant”. This is a proper reason, even if it’s not my reason and it’s not a good enough reason to determine who get’s the job.

Prejudices, in other words, often work by making the prejudiced person more likely to find some acceptable reason on the basis of which he/she may discriminate against the target group. This sort of discrimination is probably quite common, but exceedingly hard to prove, especially for the person who exhibit this strategy (very often not knowing it).

The phenomena on which this is built – post hoc rationalisation/explanation, is, as mentioned, a very useful cognitive feature and we wouldn’t want to get rid of it. In fact, generalizations are often very useful, and generalizations and prejudiced are quite clearly related. What we need, of course, is better generalizations, and making sure that this process properly correspond to the reasons we accept. I’m guessing (because the jury is still very much out on what works for prejudice-reduction) that what’s required is that we, contrary to inclination, approach that to which we have averse reactions, to find out more about the proper cause of that reaction, hoping to calibrating our reactions to what actually matters. (This may, for all I know, be what Gordon Allport meant by the ”contact-hypothesis”, btw).

There goes the neighbourhood

What counts as a hate crime?
Among the first questions you should ask when being introduced to a new category-concept is this: what does it cover? What qualifies as an ”X”? When given a fairly informative definition, you then quickly go on to fringe cases, and ask whether they qualify or not. This technique will make you seem polemic and lacking in seriousness. If you’re a decent philosopher, that’s at least partly true.
We need fringe cases in order to lure out the differences between theoretical models, and also to test the plausibility of these models.

Hate crimes, as we know, invoke a combination of factors, mainly crime, prejudice and the small but very significant and problematic notion of ”because of”. A crime is a hate one when it is committed because of a prejudice against a certain group (membership in which is based on some to-be-determined characteristic important to the victims’s, or somebody’s ”identity).

Now, it’s important to note that committing a crime because of a prejudice against a group, is more narrow than committing a crime because of group membership. I may believe (rightly) that the elderly are less able to catch me, running from the scene of the crime, and therefore target them. According to the so called ”victim selection model” for hate crimes, this might qualify simply because group mebership was part of the reason why I picked out this particular victim. According to the animus-model, it wouldn’t count unless I also held some negative and unfounded views about the elderly and that was part of the motivation for the crime.

The victim selection model allows for cases where the perpetrator has no prejudice, and prejudices in general do not enter the explanation why the crime took place. Semantically, this puts the label ”hate (and bias) crime” in question. But consider a further case:

A person assaults a group of immigrants that have recently moved in to the neighbourhood. The reason is that he/she (rightly) thinks that the arrival of immigrants have lowered the economic value of his/her house, and thus intend to scare them into moving away. Let’s imagine this is the sole reason, and the perpetrator can deny any prejudice by saying that he/she would’ve assaulted anyone whose presence in the neighbourhood had that effect.
What does the animus model say? Well, no animus is present, so this seem not to be a hate crime. The victim selection model, on the other hand, would presumably rule it in.

However: the peculiar feature of this case is that the crime is still committed because of prejudice. It’s just not the prejudice of the perpetrator, but that of the potential byers of property. On one interpretation of the ”because of” clause in the hate crime definition, then, these sorts of crimes would count. In many respects, these crimes seem to be at least as shady, and in some sense cowardly, as crimes committed on the basis of a prejudice that you have yourself. They presumably do as much damage. But should they count as hate crimes?

It depends, you might say (and rightly so), on the proper analysis of the

because of

. It’s just that this analysis depends on the plausibility of what’s included, like the fringe case above. And that in turn depends on the moral foundations of hate crime legislation. A question that, as reader of this blog may have noticed, is far from settled.

Hate Speech as Hate Crime

A number of States have laws criminalizing speech on the basis of content. ”Hate speech”, as it is often known, is a regulation prohibiting certain views from being expressed. This is distinct from direct incitement to criminal acts, or, for that matter, causing physical harm by expressing a view very loudly in someones ear, by the emphasis on content. (Lets leave for now the crucial question of how to individuate content in context).
Now, Hate Speech and Hate Crime are usually kept apart. The former is much more controversial and not embraced by as many states, or by as many scholars. Indeed, its not uncommon to come across strong advocates of Hate Crime legislation that are simultaneously in strong opposition to Hate Speech legislation.

The key difference, it is claimed, is that Hate Crimes require a ”base offence”. This means that in order for a Hate Crime to exist, there must be an act that would be criminal even absent the hate motive. But in the case of Hate Speech, it is said, there wouldn’t be an offence absent the motive or content.

There is a clear weakness in this argument, and it depends on the conflation of hate motive and hate content. I can express a hateful view without actually harboring the hate expressed. Linguistic content is not a relation between my internal state and the words I use, but between linguistic conventions/functions and the words I use. If Hate Speech is a crime based on content, it is a crime that can be committed with any motive. This means that there is a ”base offence”, independent of hate/bias motive, which can then be turned into a Hate Crime, if such motives are present.

This does not mean that all states with hate crime laws should start punishing hate speech acts. It only means that what acts can be a hate crime depends on what acts are criminal in the state in question. If speech based on content is such a crime, there is no theoretical hurdle to stop it from being a Hate Crime.

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

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 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?