Punishing hatred and prejudice.

• Author: Hurd, Heidi M.

INTRODUCTION I. THE WRONGDOING ANALYSIS A. Hate/Bias Crimes As a Source of Greater Harms (and Therefore of Greater Wrongs) 1. Greater physical injury to the principal victims of hate/bias crimes 2. Greater psychological trauma to the principal victims of hate/bias crimes. 3. Vicarious injuries to members of the victim's larger community 4. Social harms B. Motives of Hate As Constituting Greater Deontological Wrongs II. THE EXPRESSIVIST ANALYSIS A. The Two Forms of Expressivist Theories B. The Expression of Hate and Prejudice As a Unique Form of Wrongdoing C. The Expression of Hate and Prejudice As a Trigger for Enhanced Punishment Under an Expressivist Theory of Punishment 1. Why is sending a message to criminals good? 2. Is sending a message so good that it justifies punishing an offender more than is deserved? 3. Is sending a message so good that it justifies punishing an offender less than is deserved? III. THE CULPABILITY ANALYSIS A. Group Hatreds and Biases As Character Traits B. The Moral and Political Legitimacy of Punishing Bad Character IV. THE EQUALITY ANALYSIS CONCLUSION INTRODUCTION

This Article undertakes a detailed examination of the justifications advanced for the national and international rush to enact hate and bias crime legislation as an answer to the tragically brutal expressions of racial animosity, bigotry, homophobia, and misogyny that continue to remind the Western world of its inability to protect its citizens from those who do not share its egalitarian ideals. In undertaking this project, we seek to synthesize and critically evaluate over a decade's worth of scholarship on the wisdom of hate and bias crime legislation. We further seek to demonstrate that this literature, to date, has sadly failed to provide either an adequate moral justification or an acceptable doctrinal framework for this politically popular form of state action.

Hate/bias crime legislation (1) takes many forms and often specifies a number of different governmental objectives. (2) Our interest is in the normative and doctrinal justifiability of legislation that contains sentencing enhancement provisions (3)--provisions that authorize or require the enhancement of criminal penalties when already criminally prohibited actions are performed as a result of offenders' hatred or bias against their victims because of their victims' race, ethnicity, religion, gender, disability, or sexual preference. (4) The Article is divided into four principal parts, each devoted to one of the four rationales for hate/bias crime legislation that can be extracted from the considerable literature that has been amassed on this topic. Part I considers what we call the "wrongdoing thesis"--the claim that offenders who commit crimes as a result of group hatred or prejudice perpetrate greater wrongs upon their victims, or upon their victims' communities, than do otherwise identical offenders. If, as is axiomatic to desert-based theories of punishment, (5) punishment is properly attentive to the degree of wrongdoing inherent in a crime (and so is administered in greater degree to a murderer than to a thief), and if a hate/bias crime is more wrongful than an otherwise-motivated crime, then a hate/bias crime is appropriately punished with a harsher penalty.

In assessing the wrongdoing thesis, we shall initially treat wrongdoing as a function of the harms caused by an actor. On this view of wrongdoing, a greater harm makes for a greater wrong. As we shall argue, even if social science ultimately vindicates the empirical claims made by those who propound the wrongdoing thesis from their armchairs (and it is nowhere close to so doing), such claims would not justify the blanket sentence enhancements of existing hate/bias crime legislation. For as we shall demonstrate in considering each of the harms cited, hate/bias crime legislation would then be using a defendant's mental state as an indirect proxy for harms that are themselves directly, and more easily, provable; and in so doing, it would violate the principle of desert upon which the wrongdoing thesis is thought to rest.

The second section of Part I assesses the wrongdoing thesis from a deontological perspective. Here we examine the possibility that hate/bias-motivated crimes constitute greater wrongs because they violate more stringent obligations of morality, even if no greater harms are caused thereby. We catalogue the variety of obligations that might make for greater wrongdoing here but conclude that none of these obligations plausibly exist.

Part II takes up what we call the "expressivist thesis"--the thesis that acts of hate and prejudice express disrespect for members of the social community in ways that properly invite denunciation by the state in the form of elevated criminal penalties. This thesis takes two quite different forms. On one interpretation, the thesis is a special case of the wrongdoing thesis: In addition to being wrongful for other reasons, hate/bias crimes send offensive messages to groups who are entitled to equal respect, and they therefore constitute greater wrongs than do crimes that are otherwise motivated (and that thus do not convey such messages). The second, more radical, interpretation of the expressivist thesis parts company with the idea that the criminal law should be (at least in part) devoted to achieving retributive justice and also disdains traditional utilitarian accounts of punishment. It appeals instead to an alternative theory of punishment--the theory that punishment is justified if and only if it denounces conduct that is morally abhorrent to the majority of the community.

As we shall argue, the first interpretation of the expressivist theory threatens to be redundant with the claims of harm traditionally advanced by "wrongdoing theorists" and so suffers from the same difficulties that we shall identify in Part I. The second interpretation of the expressivist justification of hate/bias crime legislation is only as strong as the expressivist theory of punishment upon which it rests. As we shall suggest, the best means of making sense of why it is obligatory upon the state to denounce hate/bias crimes ultimately collapses the second interpretation of the expressivist theory into either a utilitarian theory (with all of the troubles that confront any utilitarian theory of the criminal law) or a retributivist theory (which then makes it redundant with the first interpretation of the expressivist theory).

Part III considers what we call the "culpability thesis"--the thesis that hate and prejudice constitute uniquely culpable mental states, and, hence, that crimes committed with such mens rea are appropriately punished more than otherwise-motivated crimes. This thesis relies on the common notion that while punishment is in part a function of a defendant's wrongdoing, it is also in part a function of a defendant's culpability. As we shall argue, if hatred and bias constitute new conditions of legal culpability, then the criminal law has been quite radically altered. For hatred and bias are unlike all other mens rea with which the criminal law has been traditionally concerned. Unlike intentions or goals, which can be abandoned by choice alone, hatred and bias are not directly responsive to the will. They are, rather, emotional states and enduring character traits that can, at best, be altered only indirectly and only over time. For the criminal law to punish persons for bad emotions or bad character is for it to move from an act-centered theory of punishment to a character-centered theory, and so from a liberal agenda to a perfectionist one.

Part IV turns away from claims motivated by retributivist, mixed, or expressivist theories of criminal justice to a thesis that presupposes that the criminal law is properly an instrument of distributive justice. According to what we call the "equality thesis," the enhanced penalties of hate/bias crimes properly function to achieve a more egalitarian distribution of the risk of crime within our society, because they deter the (further) victimization of groups of citizens who already bear a disproportionate amount of our society's violence. As we shall demonstrate, each of the various senses that can be ascribed to this claim render it either conceptually incoherent or morally indefensible, and, as such, it fails to function as a promising alternative to the theories of hate/bias crime legislation that we examine in Parts I, II, and III.

1. THE WRONGDOING ANALYSIS

   1. Hate/Bias Crimes As a Source of Greater Harms (and Therefore of Greater Wrongs)

      The literature that predicates enhanced punishments for hate/bias crimes on a claim that they reflect greater harm-based wrongdoing identifies four sorts of harms that such crimes are thought to cause. Each of these harms is said to support the conclusion that hate/bias-motivated criminals are guilty of greater wrongdoing, and, hence, deserving of greater punishment.

      1. Greater physical injury to the principal victims of hate/bias crimes.

         The first of the harms thought relevant by "harm theorists" about hate/bias crime legislation is that of greater physical injury. The claim is that hate/bias crimes produce greater physical injury to their principal victims than do otherwise-motivated crimes and that therefore hate/bias crime perpetrators deserve more punishment. Frederick Lawrence, for example, urges that "crimes committed with bias motivation are dramatically more likely to involve physical assaults than do crimes generally" and that "bias-motivated assaults are far more likely than other assaults to involve serious physical injury to the victim." (6) These two claims are quantified by Steven Weisburd and Brian Levin, who report that "[b]ias crimes ... are four times more likely to involve assaultive behavior than are crimes generally" and that "bias-motivated assaults are ... twice as likely to involve injury to the victim and four times as likely to require...