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.