Charleston – on hate crimes, terrorism and oppression

First, there are two initial question regarding how to categorize this event: Was it a hate crime? And was it an act of terrorism? The answer seems to be straightforwardly ”yes” to both. Statements reportedly made by the suspect, the symbols he wore, the choice of victims and place, the reported premeditation, etc. all speaks to this being a racially motivated crime, i.e. a hate crime as well as a crime committed with the intent to bring about societal change or, rather, to stop societal change, or to bring things back to the way they were, i.e. an act of terrorism. I will put most emphasis on the hate crime angle, as it is my area of expertise.

Hate crime. The Charleston case is one. On nearly every conception of what an hate crime is, if current information stands, this qualifies as one. Some commentators has said that we need to await the result of the full investigation, and that is always a good idea, but it would be surprising if that investigation would undermine what seems to be a blatantly clear cut case. There are a number of hate crime conceptions, that only partly overlap. The most common idea is of hate crimes as distinct by motivation, i.e. the reason why the perpetrator committed the crime. But in fact, many jurisdictions interpret hate crime as a case of intentionally selecting victims from a protected class, and puts less weight on the reason why the crime was committed. This is an advantage in two ways; it does not require proof of motive, and it does not rely on the controversial notion of punishing motive. A third conception understands hate crimes as defined by intent; the intent to strike fear in the targeted community, for instance. On this account, hate crimes are more or less a species of domestic terrorism. A fourth identifies hate crimes as crimes expressing a certain message to the targeted crime. (The expressive account has however been deemed unconstitutional in the US due to its conflict with the 1st amendment). The Charleston case seems to qualify as a hate crime on all these accounts. It seems to be hate motivated, the victims and place were choices because of their racial significance, the intent was (apparently) to send a message and to instigate race war.

That being said, South Carolina does not have a hate crime law. This in itself is worthy of note. The development of hate crime laws in the US was preceded by the civil rights movement, and is generally held to have the differential treatments of former slaves as second-class citizens as its background. The fact that South Carolina has not taken this measure, in conjunction with factors like flying the confederate flag and naming streets after confederate generals, means there is a long way to go. That SC does not have a hate crime law is not the end of the matter. The case can, and it looks like it will, be run as a federal case. Since the Matthew Sheppard and James Byrd Jr Hate Crime prevention act was signed into law in 2009, federal authorities have extended abilities to handle cases the states are unable or unwilling to take.

This is important for two reasons. First, the federal government having to step in in order to make justice possible in a race based case in a Southern state says something about how America is divided. Second, in order for this to be run as a hate crime case, it must be run on a federal level. But hate crime laws are penalty enhancements laws. And given the gravity of the case, it is quite possible that the penalty, if it had stayed in South Carolina state court, would have been the death penalty. In fact, the probability that it leads to the death penalty in a federal court may be lower. Which means that in order for it to be judged as a hate crime, it may lead to a lower penalty being given. On this account at least, this case can become legally interesting.

Why are hate crimes worse than other crimes? This was a massacre, a mass murder, an act of terrorism. What is the significance of naming it a hate crime?  As I said, hate crimes laws normally take the form of penalty enhancement statutes. This is because they are deemed worse than ”parallel” crimes, i.e. similar crimes absent the hate element. There are a number of reasons why, some having to do with the discriminatory nature of these acts, others with the maliciousness with which they are being committed. The most common account is harm-based, however. Hate crimes, according to influential scholars like Paul Iganski and Frederick Lawrence, hurt more. The primary victims typically experience more psychological harm when the crime is hate motivated. In a case like this, when the outcome is death, that is not relevant. But the additional harm also exist on the victims group and on society in general – it may, for instance, worsen the relations between groups. Both these accounts are relevant here; the targeted group is reminded of the risk it is at, and the tension between groups hightened.. Indeed, that was the expressed intent of the offender – to start a race war

Before moving on, lets just say this on penalty enhancements: Say he is sentenced to the death penalty, and that penalty enhancements cannot come into effect. Still, it is not pointless to treat it as a hate crime. Indeed, many victims and victimized group say that the penalty enhancement is less important than is naming the motive in these cases. Recognizing and condemning these types of crimes is the more important part. Hate crime laws has an expressive function.

So, was this an act of terrorism? Again, the answer seems to be straightforwardly ”yes” by most definitions. But perhaps not all. What makes an act of terrorism is the intent (together with means reasonably fit to purpose) to cause fear and force societal and/or political change. According to one statement, Roof wanted to bring about a race war, which is certainly one way of doing that.

What complicates matters is that Roof, much like the Norwegian terrorist Breivik, seems to be a conservative terrorist, i.e. one that wants to stop change. Or to change things back the way they were. And this may be one of the reasons why he was not immediately and universally being called a terrorist. The ”typical” terrorist is someone somehow alien to the system which he/she wants to change. The thing that people keep pointing out is that this act was the extreme expression of white supremacy, and that this ideology is actually not that alien to the dominant culture. Many commentators that wants this branded as an act of terror, also thinks that the racism expressed is not uncommon, indeed that these attitudes are entrenched in society, part of the norm. There is some tension between these two aspects: Do we want to portray him as somehow normal, which means that the problem is much, much bigger than the risk of these kinds of attacks? Or do we want to describe him as something ”other”, something alien to our system? The reluctance to accept something entrenched in ”our” culture to be capable of terrorizing that same culture is probably one of the reasons we turn to questions about mental health in these cases. Why would a person congruent with the dominant culture in what is being described as a racist society otherwise go to these lengths, take this sort of risk? In the absence of a deep cultural divide between him and us, we need mental health issues to distance ourselves from a man capable of such heinous crimes.

The reasons why it might not be understood as terrorism is that we do not yet know whether there is any clear organization behind him – which is typical of what people think of as terrorism. Of course, the need for such organizations to facilitate acts of terrorism is considerably weakened by the internet, which make it possible to cherry-pick an ideology, a support base, and a methodology to suit you. Secondly, that the criminal is (as Åsne Seierstadt stated in her book about Breivik) ”one of us”, i.e. not that different from normal members of the population. This is significant as it means there is no discernible ”other” to direct retaliation towards. Terrorist threat is ”supposed” to come from outside, from people with no other route to a position of power. Rather than describing it as an act of terrorism, then, it could be branded as an act of oppression. 

The significance – Charleston as a symptom

What does this act mean? What does it signify? Is it a sign of things getting worse, and this is just a symptom of growing racism and racist rhetoric? Or (counter-intuitively) may it be a sign of things getting better? Racist offenders may find their justification in others expressing the same views. But they also find their justification in thinking of themselves and the society and values they care about as being somehow threatened. While hate crime criminals are often part of the majority, it is when that majority think of themselves as loosing their privilege that the need to commit a crime to keep that privilege arise. Lynchings were often a reaction to former slaves behaving in a way that former slaveowners and other whites thought of as unacceptable for a black person. Similarly, hate crimes are often understood as a response to people of the hated group stepping out of their place, and there being no other way of putting them back. Segregation, privilege and power means rarely having to worry. But, of course, privilege should be threatened. People like with the beliefs that Roof seem to have should be feeling threatened, because the order they want should be collapsing. If this is how it works (note that this is just a hypothesis), a rise in these types of crimes is likely to occur as things becomes better at a more everyday, ”structural” level.

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.

Some hate crimes are worse than others

A tale of two hate crimes

Imagine that I am physically assaulted on my way to work because of my membership in some of the groups to which I belong. The white, the middle-class, academics, the city-dwelling, the fairly tall, the heterosexual or what have you. Imagine what, in this very unlikely event, would happen to me, given that I survive the assault and am not hospitalized.

I would report the crime to the police, who would hear my story and do whatever it could to track down the assailant. Then I would probably call in sick, stay at home for a some period of time, be afraid to go out, have difficulties sleeping etc. The social security system, and the social ”safety net” would soon spring into effect, I would receive a large share of my salary, my employer is very understanding, and would keep in touch but not press me to come back to work. My family and friends would gather round, make sure that I remained safe, fed, got the opportunity ta talk things through. I may never regain my complete sense of security and confidence, and may fear renewed victimization due to the manifested presence of violence inducing bias towards me in some capacity.

Now imagine a person of Roma origin from eastern Europe, begging outside a convenience store in the middle of the Swedish winter. Imagine what is unfortunately not that unlikely, that person being attacked by a hate motived assailant. What would happen then? First, that person may hesitate to contact the police, due to earlier encounters (eviction from a camp, say), fear of being harassed, registered, of being picked up on the police ”radar” as someone associated with crime and, minimally, not expecting to be taken seriously. So there is, at the very least, a hurdle to clear for any kind of social security or victim support to kick in. Further, there is very little by way of a home for this person to return to, and there is no social security, no compensation for lack of income. The situation in the homeland, which it is expensive to get back to, is not much better. There may be family and friends around, of course, but these too have to earn their living in this makeshift fashion, and they are equally at risk of being targeted.

Risk and disadvantage

Now, there are two very relevant differences between these two cases.

First, the latter sort of attack is much more likely to take place. Even when it doesn’t, people of Roma origin, particularly recent arrivals in the exposed situation of being forced to spend time begging, live with the constant risk of being assaulted, and with the constant presence of reminders of this risk. (Verbal assaults, campaigns from populist right-wing parties). Whereas I may receive a handful of group-based insults over a life time, these people receive them every single day. Besides the fact that such assaults, when they occur, have terrible consequences, they also serve as an reminder of the constant risk of assault of which they are manifestations.

Second, the difference in impact described above means different amounts of harm caused. The fact that I have access to a marvelous social safety net makes it the case that a lot of resources are concerned with minimizing the harm of such an attack. This is hardly present at all in the case of the Roma immigrant above. This is to say, they are at an disadvantage in almost any conceivable way.

Some hate crimes are worse than others

Committing a crime against a person belonging to a thus disadvantage group is, arguably for that very reason, worse than committing a similar crime against me. Doing so because they belong to that group betrays a particularly heinous motive. Both crimes above are motivated by hate/bias, but the latter is clearly worse because of the relative social standing of the victims. If so, it is not just the hate that matters, but the fact that this hate purposefully targets people that are already at a heightened risk for this sort of attack, who lack comparable resources to minimize harmful effects (including reduction in income), and that have a minimum of support when being attacked.

It is bad enough to attack these people at all. To attack them because of their membership in this group that is thus at disadvantaged, is simply beyond the pale.

Hate crimes and harm

In a forthcoming paper (in a symposium section of the Journal of Interpersonal Violence, edited by me and Christian Munthe), Paul Iganski and Spiridoula Lagou point out that hate crimes do tend to hurt more than other crimes, but that some hate crimes hurt more than others. This is an important, and yet under-researched, matter. If the seriousness of a crime is proportional to the harm involved, such matters are important. In particular, it is important for which groups should be included, and be made a priority, in the enforcement of hate crime legislation. The sort of contrast I described above suggest that it is not simply the hate/bias element that makes these crimes particularly serious, even if that is a contributing factor; it is also the fact that some groups are more frequently targeted, and that some groups are at a disadvantage when it comes to resources to cope with victimization.

Inexcusable racism

Everyone’s a little bit racist. Basic cognitive functioning relies on generalizations, after all. Unwarranted initially, in order to get off the ground, and then more or less supported, or rejected, or revised by experience, by evidence. Slightly less basic cognitive functioning requires that we adjust our generalizations in the face of evidence. We adjust our explanatory categories, we fine-tune and narrow in on something that starts to look like likelihood. Or, rather, we do this when there’s sufficient reasons to do so. And those reasons are not just epistemological, they are to a large extent pragmatic. Most of us are lazy thinkers, and all of us have limited time to spend on adjusting categories. We only do when it’s useful for us to do so, or when we have the time and interest to do so at our leisure.

We assign significance to superficial differences like skin color, mode of dress, language, gait, because superficial differences are what signifies internal and explanatory differences when no other information is readily available. (To be fair: superficial difference often DOES correlate with less unimportant things.)
Prejudices are explanatory shortcuts, and quite often they serve us well. Sometimes by being dead-on, otherwise by knitting us closer together with others with similar needs, who jumped to the same unfounded conclusions about the explanatory order of things. The prosocial function of shared false beliefs should not be underestimated. Organized religion springs to mind.

People are, by most accounts, naturally geared towards bigotry, at least under the circumstance of groups competing for resources that seems to have prevailed through a significant part of our formative evolutionary past. The thing to explain is not that we are bigoted, but that we occasionally stop. (Even so, what categories matter, and how to assign value, is, of course, learnt. The tendency is present in the cognitive default state, but needs triggers and particulars to get underway and be filled by content. A person born into a truly egalitarian world would arguably have the tendency to assign significance to the superficial, but lack most of the triggers to do so, and the guidance to do so in any particular manner. Bigots, if they were still to develop, would be of a much more idiosyncratic ilk).

We may be partially excused for being racist, then, as it is in our nature to make a big deal out of differences, and we can often find at least some evidence to back a prejudice up. We are likely to do this, as our prejudices are often at least partly emotional in nature, and we are likely to go looking for confirmation, rather than rejection, of the rationality of those emotions. Emotions too have an evolutionary function, as indications we do well to trust when information as the the value of things is scarce. Awkwardness in the face of the unfamiliar calls for post hoc rationalization (ironically, the pressure towards a racist explanation of that awkwardness increases when there is a reluctance to self-attribute prejudice).

Yet we do blame people for being racists and are presumably right to do so. Why? Because we have every opportunity to revise our first impressions. The evidence as to the irrelevance of these superficial differences is so overwhelming, and the case for the basic equal value of persons is so much stronger than any alternative account, that there is really no excuse if you’re an adult, intelligent person living under non-warlike conditions (people at war, or under extraordinary stress, may sometimes be excused).

The point is that people should be blamed, not merely for harboring racist (and other, avoidable) prejudices, but for failing to revise them in the face of evidence, and for the failure to look carefully enough for evidence that falsifies that prejudice. In many cases, the reason for such failures is nothing more sinister than basic cognitive laziness and self-interest.

There exist, of course, a skeptic safe haven for the bigoted, and it consists of distrust in the sources of evidence. If you believe that, say, the liberal elite has an agenda to mislead concerning the nature and character of the groups you disfavour, you may well protect your prejudices against such challenges. The strategy is fundamentally flawed, as it depends on not adopting skepticism in equal measures to other sources of information, like the sources you use to entrench and confirm your pre-existent prejudice. But the model provides some light when it comes to explaining why some people remain bigoted. It also shows the depth of the problems caused by societal distrust.

Notes on a scandal

For the last few days, a police scandal has been dominating swedish media. The scandal concerns a file including a very large number of people of mainly Roma origin which the press calls an ”ethnic registry”, which is clearly a rights violation and in all likely to be a punishable offense, while the police (some of them) calls it an ”analytic file”. The content of the file/registry is not entirely clear – and lets be thankful for that, police files should not be open access –  nor is the reasoning behind it’s existence or it’s extent. If you believe the police, it all started with an investigation and the collection of names of people connected to it. This, of course, is fairly unproblematic. There is no fault in gathering data on people of Roma origin connected to a suspected crime, as long as they are not collected because they belong to that group, unless group membership is clearly relevant to the investigation. Similarly, the police is not allowed to have a registry of people on basis of political conviction unless their membership in a certain political group is germane to the investigation. While this qualification seems straight-forward, it means a very large gray area. In fact, it’s probably the gray area where most rights violations takes place. I’ll return to this matter below.

At some point, the file started growing to what’s seems to be an unreasonable file, not warranted by the objective of the investigation. For example, it involves a large number of children, and some deceased people. Again: there may be sound reasons for collecting data on whether a suspect has children, and other family or association based relations through deceased persons. The problem arises where the collection of such data becomes unreasonably extensive and ulterior motives can be inferred.

Discrimination by proxy

A registry on the basis of ethnicity is clearly unlawful, and violates the anti-discrimination principle. A clear case of such a registry is one which includes only members of a certain ethnic group because they belong to that ethnic group, and also includes all such members which the people responsible for the registry knows about. The registry/file involved in the scandal is not such a clear case. A clear case of a nonproblematic registry/file is one which concerns a suspected crime and collects data of people of a common ethnic origin clearly relevant to the investigation, but in which there ethnicity is not noted as such.  The registry/file involved in the scandal is not such a clear case either.

A registry may violate the anti-discrimination principle in other ways, however. Even if the police is not collecting data on basis of ethnicity, they may collect data because of ethnicity. I.e. a proxy can be used. In the case, the proxy used seems to be family ties, very extensive family ties. As mentioned, you may collect data about family ties, but not if the reasons why you do so is based on your idea about the ethnicity of the people involved.

The importance of Reasons

The point is this: In order for the registry/file to be discriminatory, it’s not necessary that it’s a clear cut ethnic registry. It suffices that the extent of the file, or the method used, is one that wouldn’t have been employed were it not for the ethnicity of the people involved. In other words: if the reason why you take family ties to matter to a large extent is your idea about the importance of family to people of that origin to be relevant to the investigation when it isn’t. This is complicated, and relates to a well known phenomena from the social psychology of prejudice: Discrimination often proceed, not by taking ethnicity, sexuality, gender to be a reason in itself, but by you taking these things to be a reason to look for other reasons for disparate treatment. If, for instance, you are hiring someone and you choose your non-ethnic criteria on basis of which ethnic group you want to hire from. You thus provide post-hoc rationalization of your decision which does not coincide with your actual reason for it.

Clear cases, criteria and explanations

As mentioned previously in this blog, there is a problem with treating to obvious cases as exemplars. It makes it difficult to deal with the less clear cases, where some of the distinguishing marks of the obvious cases are missing. In the scandal, a clear case would be a registry based on ethnicity alone, with no other rationale.  But as mentioned, this is not necessary to make it a case of discriminatory conduct. So what is necessary? In the case above, the sort of evidence germane to the problem will concern the intents of the police officers involved, but this will be notoriously hard to come by directly. The more indirect route will come through a careful investigation and an informed judgment regarding the reasons why the investigation took the form that it took, and involve an appeal to the best explanation. For a philosopher, at least, it seems that the way to do this is to compare with files concerning similar cases where the people involved have other, or diverse, ethnic origins. If it’s standard procedure, there’s no particular problem with this case (there may be a general one, though). If it isn’t, someone needs to provide a very good explanation.

A note on antipathy and phobias

Bah! Semantics!

It would seem that semantics is the least interesting aspects of things like islamophobia and antisemitism. This may well be the case, but if you’ve ever happened to investigate into anything, you know that the least interesting aspects of things are often quite crucial. While linguistic-turn era early 20th century Oxbridge-type philosophy is often caricatured as claiming that semantics is everything that matters, the more accurate claim made is that semantics matters too.

It is, at the very least, noteworthy that while antisemitism and islamophobia are treated as examples of the very same attitude (a negative one) with a variation in object (Jewish people/Muslims), they take different lingusitics forms even on the attitude side. Why use ”anti-” in the one case, and ”phobia” in the other? Are they interchangeable? It’s clear that they are often used as interchangeable, but this may hide an important aspect: There’s a distinction at work which connects to different modes of negative attitudes and behavioral responses. These modes afford different types of explanatory schema.

Aggression and Aversion

The word ”anti-” connects to aggression, the word ”phobia” to aversion. These are both negative reactions, but aggression is connected to the behavioral response of approaching the object, while phobia is connected to the behavioral response of withdrawal. If I have a fear of spiders, I don’t primarly seek them out, even to kill them, unless there’s another way to avoid them. I’m sure there are people who are anti-spider, and will seek spiders out to kill them, but the groups of spider haters and spider fearers are probably just barely overlapping. The relation between fear and hate is not straightforward. Because of this, fear-based explanations of acts of aggression are incomplete at best. You always need a further explanatory step to show why this instance in particular provoked an aggresive response, rather than an act of avoidance.
If the semantics of ”phobia” and ”anti-” reflects this distinction, it suggests that the common perception is that Jewish people are attacked as a consequence of anti-semitism, whereas muslims are avoided as a consequence of islamophobia. Of course, both groups suffer from both types of responses.

Two problems

The distinction between aggression and avoidance is further of interest as they neatly divide the problems of racism up in two piles, it’s relatively easy to target aggression with the use of criminal law, but not so easy with avoidance (Discrimination laws targets a very limited set of the latter). Yet avoidance is probably the greater problem, as it is likely to account for most inequalities and as much of the perpetuation of antipathies between groups as the aggression does.

On overt and covert racism

The face of racism is often characterized by a swastika crudely painted on a wall, or a group of young white men screaming out their hate and anger towards a member of a hated group. The consequences of racism is often portrayed as a beaten up, dead body. This, most of us think, must stop. Presumably, open, convinced, ideologically driven racists thinks so to. Presumably, as with any kind of war, they regret that it had to come to this.
These expressions of hate and prejudice are highly problematic, and the long term effects, especially if they are not swiftly and forcefully dealt with, should not be underestimated. But what would happen if they disappeared? Would the problem av everyday racism – expressed in mild aversions, the unlikelihood of succesful encounters, covert discrimination – diminish as well, or would it, in fact, become worse? The question is this: what is the relationship between overt and covert instances of racism?
If we want to point out why racism is a bad idea, we are well served to point to these worst cases – the lynching of James Bird, the murder of Matthew Sheppard, and we do that rather than point to a job applicant narrowly losing out to another due to the foreign sounding nature of his or her name.
Yet the latter kind of situations are in all likelihood much more common and their effects much more widespread in  modern racism. Most people overtly believe in the value of equality, but still suffer from unconscious prejudices. We can deal with the easy cases, but when it becomes complicated, and we can make up a reason that justify our aversion, prejudices have a chance to win out.
Explanations are afforded by generalizations, but motivations and emotions often draw their power from individual cases.
We are on the watch for populisitic right wing parties, because we still got the more obvious racists to keep before our eyes. We remember. We often recognise and react towards our own racist tendencies by the self loathing that comes with sharing beliefs with violent and obviously misinformed perpetrators. But what if they disappeared? Would we lack these markers of racism and thus loose our bearings?
Or, alternatively: do these instances now serve the function of carrying the weight of all racism, and the problems with it? So that if they DID disappear, we would have to face the fact that it’s actually as much the implicit racism of convinced egalitarians and liberals, that cause the unfair outcomes? Or would such a scenario rather be used in support of the racist idea that any inequality remaining in the absence of overt racism must be due to inherent inequality between the ”races”?

Hello, new reader

Hello! If you’ve just found your way here, odds are that you did so because of this article http://www.dn.se/insidan/insidan-hem/for-att-lyckas-med-lyckan-far-man-inte-vara-for-krasen

Feel free to look around. The last two years of posts deal almost exclusively with hate crime. If you want something more substantial on that topic, you may start off with this video

And maybe take a look at this rather hefty text, co-authored with Christian Munthe:

http://www.academia.edu/2550264/The_Philosophy_of_Hate_Crime_Anthology_Part_I_Introduction_to_the_Philosophy_of_Hate_Crime

If you are more interested in my work on hedonism, here’s the full text of my dissertation ”Hedonism as the Explanation of Value”:

http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1455027&fileOId=1466315

Enjoy!

On extreme and everyday hatred

The locus of the problem

In policy documents and in the scholarly literature, the idea recurs that the contemporary problem with xenophobia and racism is not primarily located in extremist acts of violence but rather in prejudices prevalent in the general population, and primarily expressed in minor acts of discrimination and behaviors well below the threshold of the criminal. These acts and attitudes when combined, when systematic, accounts for many  avoidable problems facing society in general, and targeted groups in particular, and are quite clearly  a proper target of policy measures. In addition, these widespread attitudes are often held (see Barbara Perry’s 2001 book ”In the name of hate” for instance) to provide the background conditions and justification for more severe hate crimes. Hate criminals may take everyday racism as their mandate to offend

The inclusiveness of the legal definition

Hate crime and hate speech laws target, depending on jurisdiction, more or less extreme versions of discriminatory actions. In the hate crime literature (See Iganski 2008 and Perry 2001) a case has been made in favor of an inclusive definition of hate crime, not limited to cases of extremist violence, but including more or less any crime in which a bias element plays a central role. The argument in favor of such a definition is usually made on the grounds that less extremist, less obviously racist, yet still hate motivated crimes, have the same sort of particularly harmful impact as extremist crimes has, and this is the morally relevant distinction between hate crimes from other crimes. Focus on the obvious cases can make us blind to the prevalence of these relatively ”minor” crimes , and can thus have a detrimental an impact on victims tendencies to report and on authorities tendency to respond. It may also make us blind to the occurrence and impact of non-criminal covert racist behavior.

Harm and Prevention

Hate crime and -speech laws and statutes are often justified on the basis of the harm caused by these crimes. The justification may be retributory, but for the most part, the assumption and justification is that punishment has a preventive function. It is supposed that legislation will limit the occurrence these crimes, and of their harmful effects. It is also viewed as an expression of the state’s commitment to equality. It is presumably assumed to have a discouraging influence on prejudices in general. It’s to the latter function I’ll now turn.

Wider effects on prejudice

The point is this: even if the non-criminal, less obviously xenophobic expressions of prejudice is the true locus of a societiy’s xenophobia problem (and the source of  target groups remaining disadvantaged), punishing the more extreme manifestations have effects on the prevalence of the attitudes thus distinguished as aggravating.  This, presumably, is their rationale. There is little point in the criminal law expressing commitment to equality if the predicted effect is not a reinforcement of support of equality.

Are hate speech laws effective?

In his 2004 book The Hateful and the Obscene, philosopher Wayne Sumner argued against hate speech laws on the grounds that they are largely unnecessary. The kind of racist expressions that presumably warrants criminal sanction in this way is likely to be counter-acted by public opinion and reactive support for victimized groups. Society would indeed be worse if racist speech would stand  un-opposed, but it isn’t. At least not for established minorities (which tends to be the ones protected by this sort of legislation). This, of course, is part of the classic liberal defense of the first amendment: the solution to hate speech is more speech, not restrictions on speech. Hate speech legislation, on this view, is not effective and thus lack justification. Indeed restrictions are likely to make would-be offenders self-righteous and martyr-like and may thus exacerbate the problem.

The extreme and the everyday

The relation between extreme/criminal acts and speech and everyday xenophobia is crucial to policy and legislation pragmatically construed. If hate crime and – speech laws may in fact make things worse in this way (as argued in Jacobs and Potters seminal 1998 attack on hate crime legislation) and it is the widespread prejudice in the non-criminal population that accounts for the severe impact of these crimes (the impact of hate crime is presumably more severe in a society where the victim is also subject to widespread prejudices), we have a dilemma. If the public reply to hate crimes is diminished prejudice in the general population, each hate crime is likely to diminish the conditions for their particularly harmful impact. While this should  not be counted as a mitigating factor, it does rather undercut the rationale for it being an aggravating factor. In particular if the attitudes that actually determine the impact is not that of the offender, but that of the general public.

One mechanism by which punishing hate motivated speech and acts may have a detrimental effect is, as stated in the introduction, if it means we ignore and accept everyday racism as relatively unworthy of attention. Hate crime legislation, especially when it is not enforced, can be a relatively cheap way of ”taking prejudices seriously”. It can express commitment to equality while not making a commitment to work towards equality.

The case for legislation

The argument that hate crimes and -speech is naturally counteracted by public reactions, because tolerance is the prevailing attitude in most modern societies, does not necessarily undermine the case for legislation. In fact, it may offer a further argument in favor of these laws: Legislation (plus prosecution and sentencing) is part of the public ”reaction” to these crimes and to this type of speech. The public condemnation of these acts (be they acts of violence or of speech) means that they are held to warrant extra punishment. The laws are legitimate.  The support offered to victims should not just come from public reactions (which a fickle and too dependent on ones groups prior standing) but from legislation that ensures equality of consideration.

The empirical question, crucial for policy

Do laws (and prosecutions, sentencing etc) have a reinforcing impact on attitudes thus expressed? This, is an important question. And it would seem to be an empirical one, the settling of which depends on careful (and methodologically very complex) evaluations. Do effects on general attitudes depend on an inclusive hate crime concept, for instance, showing that non-extremist and non-violent crimes can be hate crimes too? Does it depend on law-enforcement making these crimes their priority? Or might such a policy result in a worsening of the situation, by putting the emphasis on group conflicts? These, as I say, are clearly crucial question to answer if hate crime- and speech legislation is based on and ultimately justified by their role in, a general anti-prejudice policy project.

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.