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Abstract
Hate/bias crimes, according to what we may call the literal interpretation, are crimes distinguished by their connection to a certain kind of motive. Hate crime laws and sentencing provisions state that such motives may result in penalty enhancements. According to the standard objection to hate crime laws, this position is problematic: first, criminal law should not be used to pass moral judgments on motives. Its concern should be with actions as modified by intentions, not with the values and reasons of perpetrators. Second, our motives are not directly responsive to the will, so we should not be held responsible for them. In reply to the second part of the objection, this article defends a version of the literal interpretation of hate crime that conceives of it as acting on a bad reason. Hate crime laws add punishment not for motives/thoughts, but for the decision to treat a patently bad reason (such as racism) as a reason to commit a criminal act. If the act itself is reason-responsive, we can be held responsible for what reasons we act on. Given that the truth or falsity of hate/bias on these grounds is not a disputed matter, we can justify using the criminal law to recognize the moral status of such motives.
Notes
[Disclosure Statement: No potential conflict of interest was reported by the author.]
1 Hall, General Principles of Criminal Law. See also Husak, “Motive and Criminal Liability,” which points out that motive has only ever been plausible for liability, not when it comes to sentencing.
2 While most iterations of this objection occurred in proximity to the introduction of hate crime legislation in most US states in the 1990s (see e.g., Gellman “Sticks and Stones”), the objection, as we shall see, has never quite gone away.
3 See OSCE/ODIHR, Hate Crime Laws.
4 See e.g., European Council Framework Decision.
5 For an overview of states that have statistics for hate crime prosecutions and convictions, see OSCE/ODIHR’s website, http://hatecrime.osce.org
6 See e.g., Lafave and Scott, Criminal Law; Hall, General Principles of Criminal Law.
7 Husak refers to Paul Grice's description of motives, which states that to have a motive for an action is to believe that some end will be furthered by performing it, and to want or desire to further that end.
8 In “Agent Motives and the Criminal Law,” Sistare demonstrates the underlying conflict in the distinction between the reason model and the “further intent” model of motive.
9 See also Hessick's more recent “Motive's Role in Criminal Punishment.” While defenders of hate crime legislation like Hessick and Kahan (see below) argue that motive has always been relevant to the criminal law, they also recognize that it has become increasingly so with the introduction of hate crime legislation.
10 See e.g., Perry “On the Semantics of Hate.” The term “bias crime” has very nearly replaced “hate crime” in the US in legal but not policy settings. See also Lawrence, Punishment of Hate.
11 See Klingspor “Challenges of Collecting Statistical Data.”
12 As Martha Nussbaum recently pointed out, “Bias is Ugly. Indeed, as Kant suggests, it is a good candidate for being the basic form of ethical failing.” Nussbaum, New Religious Intolerance, 138.
13 The different concepts/functions relate to each other, however. Hate crime statistics depend on reporting by victims, witnesses, and responders. Reporting depends on what these individuals are encouraged to pay attention to, which depends on whether there is any point in thus reporting it. This motivation in turn depends on priorities made clear by policies and expected outcomes.
14 If hate crimes are likely to cause more harm than other crimes, it is important that the perpetrator intended, knew, or should have known this to be the case. If hate motive is connected to particularly extensive harm, the mechanism by which this occurs is likely to require that the hate motive was somehow expressed, or made likely by the circumstances. Such a mechanism may steer us toward a more expressive conception of what should be considered a hate crime in the sphere of criminal law (as opposed to a pure motive-oriented one). Of course, such factors will at any rate be required as evidence of motive.
15 See Brax and Munthe, Philosophy of Hate Crime; Brax, “Hate Crime Concepts.”
16 See Lawrence, Punishment of Hate.
17 See Hurd, “Why Liberals Should Hate”; Hurd and Moore, “Punishing Hatred and Prejudice”; Dillof “Punishing Bias.” Nevertheless, some items of legislation as written are at least consistent with this interpretation. The influential Anti-Defamation League (ADL) model statute and various ethnic intimidation formulations of statutes seem to afford this kind of interpretation. See Anti-Defamation League, Hate Crime Laws.
18 This distinction is made by many of those involved in the hate crime debate. See Harel and Parchomosky, “On Hate and Equality”; Dillof, “Punishing Bias.” It is, of course, quite common to use “wrongdoing” to denote the combination of actus reus and mens rea. The point of the distinction, then, is merely to point to two aspects of wrongdoing.
19 See Hurd and Moore, “Punishing Hatred and Prejudice.” I am accepting this premise for the sake of the argument. For a character-oriented account of hate crime legislation, see Taslitz, “Condemning the Racist Personality.”
20 The relevance of motive to the criminal law is a matter of some contention. As Carissa Hessick writes, motive is arguably distinct from the traditionally recognized mens rea, meaning that including it as grounds for punishment requires careful argument. Motive is, however, frequently held to be relevant for punishment in other ways, primarily at the sentencing stage. A wide set of mental states are in this way indirectly relevant in criminal law. They are relevant to assessing the dangerousness of the criminal, for instance, and to assess his/her level of culpability for the crime. They are also relevant as evidence.
21 Hurd and Moore “Punishing Hatred and Prejudice,” 1120. However, Hurd and Moore believe that these are cases where motives mitigate because they suspend “the sort of reasoned judgment that is required for full responsibility.” Thus, they believe, it cannot serve as precedent for treating motive as an aggravating factor.
22 See Husak, “Motive and Criminal Liability”; Gardner, “Mens Rea Enigma.”
23 This is roughly Heidi Hurd's point in “Why Liberals Should Hate.” See also Dillof in “Punishing Bias.”
24 Gellman, “Sticks and Stones.” Intentions are obviously relevant to the criminal law, so if motives are to be construed as a controversial grounds for punishment, we need to make this distinction. Roughly, this distinction can be cashed out in the following way: intentions concern what the agent was trying to do, whereas motives explain why he or she tried to do it. Motives, according to this view, are distinct from and explanatorily prior to intentions.
25 Gellman points out that the ADL model statute, to which most US bias crime statutes conform, “does not address effects, state of mind, or a change in the character of the offense, but only the thought and ideas that propelled the actor to act.” Ibid., 364.
26 Ibid.
27 Ibid. 364–5; my italics
28 Ibid. 367.
29 See Dillof, “Punishing Bias.” Dillof argues that bias crime laws seem to express an illegitimate interest in the thoughts of its subjects.
30 Note the exception created by the “implicit.” These kinds of mental states should probably not be conflated with those that Gellman describes as qualifying an action. Dillof allows for mental states independent from wrongdoing to be relevant for culpability.
31 See Iganski “Hate Crimes Hurt More.” For a development of the proxy problem, see Hurd and Moore, “Punishing Hatred and Prejudice.”
32 Dillof, “Punishing Bias,” 1066
33 Ibid. Now, it should be recognized that it is certainly possible to influence one's beliefs and desires through acts of will, but not, according to this view, in the direct sense required for consideration by criminal law.
34 This, as we shall see, is an important observation, the implications of which Dillof fails to consider—the fact that in a bias crime, bias motivation could be overridden but was not, shows that there was an opportunity for choice.
35 Dillof, “Punishing Bias,” 1075.
36 Ibid., 1076.
37 See Jacobs and Potter, Hate Crimes.
38 Dillof, “Punishing Bias,” 1079.
39 By contrast, general disrespect does not discriminate, and singular disrespect does not affect larger sets of people.
40 Of course, there may be reasons for which it is acceptable to kill, such as self-defense, but recall that Hurd and Moore, and also Gellman, deny that the difference between murder and killing in self-defense is merely one of motive.
41 See Hurd and Moore, “Punishing Hatred and Prejudice,” 1095.
42 I am indebted to Jonathan Jacobs for pointing out the need for this clarification of Hurd and Moore's position.
43 Of course, there are defenders of rehabilitative, expressive, and restorative approaches that hold these to be the central part of criminal law and the justification of punishment. By saying that these approaches can be brought into either of the main traditions, I’m only saying that rehabilitative accounts tend to be consequentialist, while restorative ones tend to be a hybrid of utilitarianism and retributivism, as do expressive accounts.
44 A claim questioned by Jacobs and Potter in Hate Crimes, Hurd and Moore in “Punishing Hatred and Prejucide,” and others.
45 See Dillof, “Punishing Bias”; Morsch, “Problem of Motive.”
46 But see Taslitz, who defends precisely this sort of account of bias crime laws. Taslitz, “Condemning the Racist Personality.”
47 Dillof also argues that bias crime statutes violate the liberal ideal of freedom of thought. Thought should not be the basis of criminal sanctions. The act is already punished, so the addition is imposed as a direct function of the additional biased thought. This objection points to a core tension in liberalism between the ideals of equality of treatment and freedom of thought (Dillof, “Punishing Bias,” 1017). Dillof here treats the combination of act and motive as “mere addition.”
48 Hessick, “Relevance of Motive,” 91; my italics.
49 Kahan, “Two Liberal Fallacies,” 176.
50 This argument is also made by Taslitz, who argues that “motive plays a role in defining all specific intent crimes, as well as many defenses (such as insanity, duress, and necessity), and in sentencing.” Taslitz, “Condemning the Racist Personality,” 754.
51 Kahan, “Two Liberal Fallacies,” 176.
52 See ibid., 179n19.
53 Jeffrie Murphy makes a similar argument in “Bias Crimes.”
54 See Kahan, “Two Liberal Fallacies,” 177; also Kahan and Nussbaum, “Two Conceptions of Emotion.”
55 Hurd and Moore, “Punishing Hatred and Prejudice,” 1120.
56 Husak, “Motive and Criminal Liability,” 4.
57 These interpretations are distinguished and developed in Brax, “Hate Crime Concepts.” A sophisticated version of the expressive concept of hate crime is presented by Kaupinnen, “Hate and Punishment.”
58 However, these interpretations get us into other controversies, which lies beyond the scope of this article. It is likely that the cases where hate crime legislation is ultimately applied are those where all of these interpretations are simultaneously applicable. A hate crime definition that requires some combination of motive, intention, and expression may thus be closer to the narrow sense of hate crime as used in criminal law practice. Such a definition would, however, be further from the concept of hate crime as used in hate crime studies more generally.