Hate and Harm

The justification of punishment

Ok, short background: The traditional justification of punishment is based on two not entirely independent considerations: Wrongdoing and Culpability. There are other considerations, but -with the possible exception of strict liability offenses – these are necessary conditions for the justification of punishment. If no wrong has been committed, or the agent is not culpable, there can be no justification of punishment. This rules out mere ”utilitarian” justifications of punishing an innocent person in order to bring order or create a false sense of safety in the public. Now,  what counts as criminal wrongdoing is a matter of contention, but the minimal conception has it that it is a matter of  harm. It’s minimal in that it does not presuppose anything beyond the nearly universally accepted principle that inflicting harm is to be avoided. The wrongness of an action is a matter of the harm caused. But it does not end there. Attempted murder causes no, or rather little, harm, but still involves substantial wrongdoing. Intending, or rather: risking harm is thus also a form of wrongdoing. It’s notable that the notion of risk is actually rather more central than the notion of intention , as is shown by the tendency not to punish ill intentions when the means used are clearly inadequate. Homeopathic poisoners face very limited charges.

Hate crime legislation

”Hate crime hurts more”. This claim is supported by most proponents of hate crime legislation, Notably Frederick Lawrence and Paul Iganski. This argument, then, seems to take the ”wrongdoing” route to the justification of punishment enhancements for hate crimes: if punishment is to be proportional to harm,  crimes that causes more of it deserves harsher punishments.

The Critics

Critics of hate crime legislation (notably Heidi Hurd and Michael Moore, Anthony Dillof , James B. Jacobs and Kimberly Potter) tend to question the above claim. Jacobs and Potter points out that the evidence is slim, and that hate crimes are not compared with properly ”parallel” crimes. This criticism had a lot of merit at the time of it’s publication, but more recent research shows that even when controlled for other factors, hate crimes tend to cause more emotional harm than parallel crimes. Another line of criticism, from Hurd, Moore and Dillof, points out that hate should not be used as a proxy. Not all hate crimes cause more harm than parallel crimes. So is it not unfair to punish those that do not cause more harm because others tend to? Lawrence and Iganski admits this, and Lawrence actually argues that while the justification of the legislation is based in the fact that hate crimes hurt more, the justification of individual punishments is based on the culpability of the offender. It would seem that individuals, then, are being punished for their opinions, and a whole new can of criticism opens up.

Hate and Risk

Heidi Hurd points out that if we allow enhanced punishment on the ground that the type of crime they commit tends to cause more harm, we would have to punish bad tempered people more than others. Bad tempered people tend to cause more harm than others, so even when they don’t, they’re assaults should be viewed as aggravated. This is intended as a reductio, but does it work as one? Assault with a deadly weapon is worse than assault without one because it risks greater harm, even when it does not in fact cause it. There is a clear mechanism by which the deadly weapon (hence the name) would tend to cause the harm, and by wielding it, you are risking that harm.

Now apply this to hate crimes. Hate crimes, i.e. crimes committed because of hate/bias/prejudice towards a certain group, tend to cause more harm because acts expressing hatred do. There is, arguably, a mechanism by which hate crimes tend to cause a certain kind of harm. This does not always happen, and it’s not the only mechanism by which such harm is caused, but committing a hate crime risks causing additional harm. It is ”assault with a harmful opinion”, if you will. I’ve used the drunk driving analogy before: you risk causing great harm if you drive under the influence. You may cause the same harm while sober, and you may avoid it while drunk, but this does not undermine the fact that you are justifiably punished for taking the risk. Of course if you actually do cause harm under the influence, you are punished more than if merely taking the risk. If the analogy holds, hate should be aggravating even when it does not cause additional emotional harm, but even more so when it does.

Opinion or expression?

Opinions does not cause harm on their own. They must be expressed and/or perceived in order to do so. This suggests, as I’ve explored elsewhere, that we might move away from punishing ”opinions” and concentrate on hate expressive acts. There are many benefits to this approach, chief of which is that expressions are more easily ascertainable than are opinions. We don’t punish ”thoughts”, and we focus on what actually cause the harm. A crime that expresses hate causes/risks the same harm no matter whether the perpetrator actually harbors the opinion, so this seems a natural route to take.

But expressions can be open for interpretations and the criminal may plausibly deny intending to express anything particular about the victim. Should evidence showing that the perpetrator actually harbors the opinion then be rendered irrelevant? Not necessarily. If you hate a group and commit a crime against someone of that group because of it, you risk expressing the hatred that in turn risks causing the greater harm. A risk based approach is thus consistent with both versions.