On hate and equality.

• Author: Harel, Alon
• Position: Hate crime laws

Bias crime legislation--or, as it is sometimes called, hate crime legislation--enhances the punishment of crimes that are carried out because of the victim's race, gender, religion, or sexual orientation. Since its inception, bias crime legislation has sparked substantial political controversy and scholarly discussion. This debate was recently rekindled by the horrendous murder of Matthew Shepard, which shocked our society and prompted President Clinton to speak to the issue in this year's State of the Union Address.(1) The academic community, however, remains deeply divided over the need for and desirability of such legislation.(2)

The disagreement about bias crime is due in large part to the fact that existing justifications for bias crime legislation proceed from the premise that the rationale supporting bias crime legislation must be found either in the greater gravity of the wrongdoing involved in such crimes or in the perpetrator's greater degree of culpability.(3) Advocates of bias crime legislation strive to demonstrate that bias crimes are more wrongful than identical crimes not motivated by bias,(4) or that bias crimes implicate a greater degree of culpability on the part of the perpetrator of the crime.(5) Equally committed to this premise, opponents of bias crime legislation purport to show that bias crimes are not more wrongful than identical crimes not motivated by hate and that they do not involve greater culpability on the part of the perpetrator.(6) Thus, the discussion of the desirability and necessity of bias crime legislation has focused almost exclusively on the wrongfulness of the act and on the moral blameworthiness of the perpetrator of the crime, assuming that these constitute the only grounds upon which penalty enhancement for bias crimes can be justified.

This premise is grounded in a more comprehensive theory that dominates the non-utilitarian discourse of criminal law--that the only two grounds that may justify disparate treatment of offenses in the context of criminal law are the wrongfulness of the act or the culpability of the perpetrator.(7) Despite its semblance of fairness, this wrongfulness-culpability paradigm is heavily biased in favor of criminal offenders. Because the criminal offender controls, to a large extent, both her conduct and her mental state, the wrongfulness-culpability paradigm confers upon the criminal offender the power to dictate the content of criminal prohibitions and the sanctions imposed for violating them. The wrongfulness-culpability paradigm assigns no independent importance to the crime victim. Under this paradigm, the harm to the victim is merely one factor out of many that may affect the wrongfulness of the act.

This Essay challenges this paradigm and proposes an alternative theory in support of bias crime legislation. The primary flaw of the wrongfulness-culpability paradigm is the exclusive role it assigns to factors that are intrinsic to the criminal encounter in determining the content of the prohibitions of criminal law and the severity of its sanctions. It neglects, therefore, broad societal concerns that are extrinsic to the criminal encounter, such as the relative vulnerability of potential crime victims and their likelihood of being attacked. Furthermore, it completely ignores society's duty to provide equal protection from crime to different potential victims. This limited prism allows the wrongfulness-culpability paradigm to take into account the actual harm inflicted on crime victims, but it precludes it from considering the relative vulnerability to crime of various victims in determining criminal punishment. Hence, the wrongfulness-culpability paradigm provides no basis for fair distribution of protection against crime to various potential victims.

The inability of the wrongfulness-culpability paradigm to give sufficient weight to the interests of victims calls into question its dominance in criminal law theory. By challenging the exclusivity of the wrongfulness-culpability paradigm, this Essay challenges some of the conventional normative foundations that underlie discourse about criminal law. Specifically, this Essay argues that acknowledging the role of the victim is essential in understanding bias crime legislation and its normative roots. To accommodate broader societal concerns, the Essay develops an alternative to the wrongfulness-culpability paradigm, which we call the "fair protection paradigm." The fair protection paradigm is predicated on the proposition that the criminal law is a principal means by which society provides protection against crime to potential victims. On this view, protection against crime is a good produced by the criminal justice system, which, like many other state-produced goods, should be distributed in an egalitarian manner.(8) Accordingly, the fair protection paradigm requires the state to take into account disparities among individuals in vulnerability to crime when determining their entitlement to protection. Thus, under the fair protection paradigm, victims who are particularly vulnerable to crime may have a legitimate claim on fairness grounds to greater protection against crime. Bias crime legislation, on this view, is aimed at protecting individuals who are particularly vulnerable to crime because of prevailing prejudices against them.

An individual's vulnerability to crime can be defined as the expected harm from crime for that individual--that is, the probability of harm multiplied by its magnitude. Individuals may be particularly vulnerable to crime for two different reasons: a greater sensitivity to harm and a greater likelihood of becoming a victim. Individuals who fall into the former category may be labeled "extra-sensitive victims," and individuals who belong to the latter may be called "high-risk victims."

A state may address the problem of vulnerable victims in one of two ways. First, it may impose harsher sanctions on those who commit crimes against vulnerable victims. Second, it may devote more resources to identifying and prosecuting individuals who attack such victims. While both strategies are likely to discourage attacks on vulnerable victims and thereby to provide them with greater protection, the latter strategy may sometimes be infeasible or too costly. Therefore, equalizing protection through the imposition of harsher sanctions may sometimes be the only way by which the state can provide vulnerable victims with more protection and consequently equalize their vulnerability to that of other potential victims.

Yet the principle of equalizing protection against crime should be constrained in certain ways. The fair distribution of protection does not require absolute equality of the expected costs of crime. Under a radical interpretation, equal protection against crime might be understood to require the state to equalize the expected costs of crime for all potential victims. This view of equality would imply a duty on the part of the state to address any vulnerability to crime, regardless of its source or reason, and to place all of its citizens on equal footing in terms of their exposure to crime. But such a radically egalitarian view cannot provide a solid basis for understanding the nature of criminal law; nor can it be morally justified. Vulnerability to crime is a function of myriad factors such as wealth, age, attitude toward risk, life experience, and physical and intellectual prowess. Not all of these factors should be taken into account by the state. Some disparities in the vulnerability to crime depend on the investment in precautions by the victim herself. Other disparities may be grounded in luck and other factors that do not mandate interference by the state. The state cannot be reasonably expected to annul all of the disparities in the vulnerability of different potential victims of crime.

The implausibility of the radical egalitarian view should not, however, prod one to endorse the radically inegalitarian view, namely, the view that the state should be blind to differences in vulnerability among victims. In fact, the state's failure to redress some of the differences in the expected costs of crime among different potential victims is intolerable and unjust. This Essay argues, therefore, for an intermediate position, one which requires the state to annul certain disparities in the vulnerability of different victims while allowing other disparities to remain. More specifically, we take the position that, at a minimum, a liberal state must redress disparities in vulnerability to crime that result from certain immutable personal characteristics of the victim.

The duty of the state to annul differences in vulnerability among different potential victims does not depend on the magnitude of the disparity in the vulnerability of different victims, but rather on the reasons underlying the greater vulnerability of some victims. Thus, even slight differences in vulnerability attributable to racial factors may justify punishment-enhancing legislation, while greater differences attributable, for instance, to the victim's choices require no action on the part of the state.

To be sure, opponents of bias crime legislation may criticize our analysis on the ground that distributive justice theories, like the one we proffer, are alien to criminal law. But such criticism would be misguided. In fact, the "fair protection paradigm" provides a theoretical basis for many of the doctrines of criminal law, and its explanatory power ranges beyond the context of bias crimes. The fair protection paradigm can explain, for instance, why crimes directed against extra-sensitive victims are often punished more severely than crimes directed against less vulnerable ones.

Properly understood, therefore, bias crime legislation is part of a larger scheme of providing fair protection against crime. Recognizing the interest of victims makes it clear that bias crime legislation is...