Punishing Hate: Bias Crimes Under American Law.

• Author: Dillof, Anthony M.
• Position: Review

PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW. By Frederick M. Lawrence. Cambridge: Harvard University Press. 1999. Pp. xi, 269. $39.95.

The war against bias crimes is far from finished. In contrast, the battle over bias-crime laws is largely over. Bias-crime laws, as commonly formulated, increase the penalties for crimes motivated by bias. The Supreme Court has held that such laws do not violate the First Amendment.(1) Virtually every state has enacted some sort of bias-crime law.(2) Even the federal government, which may consider itself without power to enact a general bias-crime law,(3) has made bias a sentence-aggravating factor for the range of federal criminal offenses.(4) Bias-crime laws thus are an established feature of the legal landscape.

Against this background, Frederick Lawrence(5) has written Punishing Hate: Bias Crimes Under American Law. Punishing Hate is not a work of radical vision. It blazes no new trails in its method or its conclusions. Rather, it is a careful reconstruction of reasons and arguments underlying the current consensus approval of bias-crime laws. Accepting that bias should matter for the criminal law, it implies a better theory is needed of why bias should matter, and seeks to provide that theory.

To explain the importance of being biased, Lawrence analyzes bias-crime laws within the context of traditional moral theories and orthodox First Amendment concerns. He cogently explains the basic form and function of bias-crime laws, offers some useful refinements for their formulation, vigorously defends their moral soundness and constitutionality, and forcefully advocates their adoption by the federal government. Throughout, Lawrence displays an unwavering commitment to the ideal of equality, never leaving his readers in doubt as to where his sympathies lie. Occasionally voyaging into sophisticated areas of moral philosophy, criminal theory and federal jurisprudence, Lawrence presents his subjects with accessible, deliberate, and sometimes stirring prose. Punishing Hate also includes a number of extensive and well-researched appendices making the book a useful scholarly tool. Thus, Lawrence has written what may come to be regarded a classic liberal treatment of bias crimes and the laws governing them.

To say that Lawrence has presented a classic liberal treatment of his topic, however, is not to say that his valorizing of bias-crime laws will persuade the as-yet unconverted. Encompassing a variety of independent ideals, liberalism(6) occasionally yields merely plausible answers to difficult social issues. As will be discussed, Lawrence in Punishing Hate often seems to give unjustified priority to the ideal of equality. When the moral issues concerning desert become controversial, when the empirical evidence concerning social impact becomes thin, when the proper formulation of a law becomes debatable, when the commands of the Constitution become unclear, when the meaning expressed by an official act becomes ambiguous, Lawrence is willing to let the rhetorical appeal of equality carry the day. Thus, while Lawrence does not settle for simplistic answers to the questions he asks, he often does not ask the hardest questions.

Intellectually, bias crimes are located at the intersection of sociology, moral philosophy, criminal justice, American history, clinical psychology, and cultural studies. Punishing Hate thus attempts to cover an enormously complex topic in relatively few pages. Lawrence's strategy is to concentrate on the issues of greatest concern to his intended audience: the interested layperson, the lawyer, and the legislator. In this Review, I shall strategically limit myself to discussing the three major issues of concern to Lawrence: the justification of bias-crime laws, the constitutionality of bias-crime laws, and the role of the federal government in prosecuting bias-crimes.

1. THE JUSTIFICATION OF BIAS-CRIME LAWS

   In Chapter Three, Lawrence examines the central normative question: Are the increased penalties provided by bias-crime laws morally justified? Lawrence answers this question by applying both traditional consequentialist/utilitarian and deontological/retributive theories of punishment to bias-crime laws. Although such theories reflect deep philosophical differences, in practice they often converge. Both theories recognize that, generally speaking, the greater the harm associated with a criminal act, the greater the appropriate penalty. Likewise, both theories recognize that the mental state of the perpetrator is relevant in determining the magnitude of the penalty. There may, of course, be instances where consequentialist concerns for deterrence or incapacitation would authorize greater penalties than those recommended by desert-based forms of retributivism. Because such results are arguably unjust, Lawrence rejects a pure utilitarian theory of punishment in favor of a mixed theory, i.e., a utilitarian theory of punishment with desert-based side-constraints (p. 50). He then examines bias crimes in light of the mental states and harms associated with them. As discussed below, he concludes that both pure retributive and mixed theories of punishment support bias-crime laws.(7)

   Lawrence begins with a deontological justification based on the bias criminal's mental state.(8) According to Lawrence, this deontological justification is the one espoused by "most supporters" of bias-crime laws (p. 61). This justification asserts that bias criminals are more deserving of punishment than other criminals without appealing to the independent contingent premise that bias crimes cause greater harm than similar crimes not motivated by bias ("parallel crimes"). The justification begins with the unassailable premise that those who kill intentionally are more blameworthy, and hence more deserving of punishment, than those who kill negligently (p. 60). Likewise, so goes the argument, bias criminals are more blameworthy than other criminals. Why should bias criminals be especially blameworthy by virtue of their motivation? Lawrence explains that "[t]he motivation of the bias-crime offender violates the equality principle, one of the most deeply held tenets in our legal system and our culture" (p. 61).

   It is unclear to what extent Lawrence endorses this most widely espoused justification of bias crimes. Lawrence states the justification with implicit approval. Elsewhere in the book, he expresses similar sentiments (pp. 38-39, 75). In explaining the grounds for bias-crime laws, however, Lawrence often refers to only justifications based on increased harms associated with bias crime (pp. 4, 5, 40, 45, 80, 95, 175).

   Lawrence is sensible to de-emphasize this deontological justification of enhanced penalties. It is flawed. From a deontological perspective, mental states generally are considered relevant to blameworthiness because they speak to the responsibility of the offender for her wrongful act.(9) Purpose, knowledge, recklessness, and negligence are the four organizing mental states of the Model Penal Code.(10) They serve to establish the precise degree of responsibility the wrongdoer bears for the harm she has caused. An actor who rationally, intentionally, and deliberately commits an assault based on racial bias is no more responsible for the assault than one who similarly commits an assault based on greed. They both are, we might say, maximally responsible for the wrong of assault and so are equally blameworthy. Of course, the greed-driven offender merely knows the race of his victim and so is not as responsible for his victim's being of a particular race. A bias criminal is exactly a criminal who may be held fully accountable not only for causing harm, but also for the harm's being caused to a victim of a certain identifiable group. The group identity of the victim, however, is irrelevant to the wrongfulness of the assault. African Americans, for example, have no greater right not to be assaulted than whites and, as a general matter, deserve no greater protection.(11) A person who intentionally assaults an African American is not thereby responsible for a greater right violation than a person who commits an intentional assault indifferent to the race of his victim. Bias motivation does not increase the perpetrator's responsibility for any morally relevant aspect of the assault.(12)

   On some accounts, however, mental states are relevant to blameworthiness not because they imply greater responsibility for a harm, but because they reflect the flawed character that is the underlying cause of the crime.(13) By rejecting the equality principle -- "one of the most deeply held tenets in our legal system and our culture" (p. 61) -- the bias criminal, it may be argued, reveals his character to be more deeply flawed than that of the ordinary criminal.(14)

   Without taking a position on the general validity of character theories of punishment, I do not believe that such theories provide support for bias-crime laws. The equality principle does not appear to possess the privileged position that Lawrence ascribes to it. Although Lawrence does not explicitly define it, the equality principle roughly appears to be the principle that individuals should be treated without regard to race, color, religion, or other characteristics that historically have been the basis for widespread discrimination (pp. 11-20). So defined, this principle has ascended undoubtedly in importance in our culture and legal system in recent decades. Yet it is only one among many important ideals. Our culture and legal system equally cherish the principles of fairness, human dignity, autonomy, altruism, reciprocity, forgiveness, loyalty, and self-expression to name a few. Sadists, wife-beaters, loan sharks, child molesters, drug pushers, and their ilk generally act on motives as abhorrent as bias and generally have characters that are equally flawed. The standard penalty levels are believed sufficient to deliver...