The punishment of hate: toward a normative theory of bias-motivated crimes.

• Author: Lawrence, Frederick M.

Implicit within every penal relation and every exercise of penal power there is a conception of social authority, of the (criminal) person, and of the nature of the community or social order that punishment protects and tries to re-create.(1)

America, on the whole, has been a staunch defender of the right to be the same or different, although it has fallen short in many of its practices. The question before us is whether progress toward tolerance will continue, or whether, as in many regions of the world, a fatal retrogression will set in.(2)

Most everyone agrees that bias crimes are a scourge on our society and that the problem is getting worse.(3) What is surprising in the face of this apparent consensus is the relative lack of focus on three critical underlying questions. First, what precisely distinguishes a bias crime(4) from a similar crime committed without bias motivation -- that is, a "parallel" crime?(5) Second, why should a bias crime be punished more severely than a parallel crime? Third, under what circumstances is an individual guilty of a bias crime, as opposed to a parallel crime? This article addresses these questions, each of which has gone largely unexplored in the growing literature on bias crimes.

Legal bias crime scholarship has focused on issues of hate speech,(6) particularly in the university context,(7) and on the tension between bias crimes and freedom of expression.8 Some scholars have explored the constitutionality of proposed federal bias crime legislation.(9) Legal scholars have not, however, rigorously addressed the definition of bias crime, nor have they constructed a normative argument for enhanced punishment. At most, these authors have attempted to fine tune state or federal criminal statutes in order to make them more effective vehicles for punishing bias crimes.(10)

Bias crime scholarship in such allied social sciences as sociology and criminal justice has primarily tended to describe either the legal responses to incidents of bias-motivated violence(11) or the identifying characteristics of the perpetrators of bias crimes and their victims.(12) This body of work is of great value to the present project, which brings the studies of sociologists and criminologists to bear on the fundamental legal issues raised by bias crimes.

This article explores how bias crimes differ from parallel crimes and why this distinction makes a crucial difference in our criminal law. Bias crimes differ from parallel crimes as a matter of both the resulting harm and the mental state of the offender. The nature of the injury sustained by the immediate victim of a bias crime exceeds the harm caused by a parallel crime. Moreover, bias crimes inflict a palpable harm on the broader target community of the crime as well as on society at large, while parallel crimes do not generally cause such widespread injury.

The distinction between bias crimes and parallel crimes also concerns the perpetrator's state of mind and, specifically, his bias motivation toward his victim. The punishment of an individual offender for the commission of a bias crime is warranted by the state of mind with which he acts.

Part I of this article discusses the differences between bias crimes and parallel crimes. This Part explores the distinctiveness of perpetrators and victims of bias crimes along with the impact of bias crimes on the victim, the target community, and society as a whole. Section I.A begins with an analysis of the requisite mental state of the bias crime offender under current bias crime statutes. This analysis demonstrates that there are two somewhat overlapping yet analytically distinct models of bias crimes. I refer to these models as the "discriminatory selection model" and the "racial animus model."(13)

The discriminatory selection model of bias crimes defines these crimes in terms of the perpetrator's discriminatory selection of his victim. Under this model, it is irrelevant why an offender selected his victim on the basis on race. It is sufficient that the offender did so. The discriminatory selection model of bias crimes has received particular attention recently because the Supreme Court upheld a statute based on this model last year in Wisconsin v. Mitchell.(14) Because Mitchell represents the constitutional authority for the enactment of bias crime laws, the Wisconsin statute at issue in that case warrants close examination.(15) The racial animus model of bias crimes defines these crimes on the basis of the perpetrator's animus toward the racial group of the victim and the centrality of this animus in the perpetrator's motivation for committing the crime. A number of states have employed this model in their bias crime statutes.(16) Many but not all cases of discriminatory victim selection are in fact also cases of racial animus.(17) Given the differences that exist between these two models, any analysis of the punishment of bias crimes must provide a clear understanding of what distinguishes bias crimes from other criminal behavior.

Having established a typology of positive bias crime law in section I.A, I discuss in section I.B the outward manifestations of these crimes. This discussion first addresses the nature of the conduct of the bias crime perpetrator. I then turn to the impact of bias crimes on three different levels: (i) the impact of bias crimes on the specific victim of the crime; (ii) the broader impact of bias crimes on the "target" group, that is, the racial group of which the victim is a member; and (iii) the impact of bias crimes on the general community.

Part II demonstrates that bias crimes ought to be punished more severely than parallel crimes. I begin with an examination of the role of proportionality in criminal punishment. The proportionality of punishment to the seriousness of the crime is a critical aspect of the punishment theories of both retributivists and consequentialists. In order to determine the relative punishments for various crimes, there must be a means by which to measure the relative seriousness of those crimes. If the level of intentionality for two crimes is roughly the same -- as is the case with an intentional assault and an intentional bias-motivated assault -- the relative seriousness of the crimes is best measured by the harm caused. Although we cannot measure harm with arithmetic precision, much can be said to guide our understanding of harm. Finally, Part 11 applies the analysis of relative harms to the context of bias crimes, concluding that bias crimes warrant harsher punishment than parallel crimes.

Part III considers the aspects of bias crimes that are relevant in the punishment of an individual offender. Whereas the harm caused by bias crimes generally justifies the enhanced punishment of these crimes, the resulting harm to a particular victim does not, in and of itself, warrant the enhanced punishment of the perpetrator. Bias motivation of the perpetrator, and not necessarily the resulting harm to the victim, is the critical factor in determining an individual's guilt for a bias crime. Part III concludes that the discriminatory selection model of bias crimes, adopted by many states and upheld in Mitchell, fails to capture the essence of what constitutes a bias crime.(18) The racial animus model of bias crimes, on the other hand, offers a far richer theory and ought to be the focus of the study of bias crimes. Discriminatory selection of a victim may often provide important evidence of racial animus, and in some instances even fully persuasive evidence. But selection of victims ought to play the role of proof for animus and not the greater role of an element of the crime.

1. How Bias Crimes are Distinct from Parallel Crimes

   1. The Mental State of the Bias Crime Offender. The Discriminatory Selection Model and the Racial Animus Model of Bias Crimes

      A typology of bias crime laws(19) properly begins with the Wisconsin penalty enhancement law(20) upheld by the Supreme Court in Wisconsin v. Mitchell.(21) Mitchell was the first case in which the Supreme Court expressly sustained a modern bias crime law.(22) In a sense, the Mitchell case removed the constitutional shadow cast over bias crime statutes by R.A.V. v. City of St. Paul(23) The penalty enhancement statute upheld in Mitchell was based on the discriminatory selection model. The nature of this model was crucial to the manner in which the State of Wisconsin sought to distinguish its statute from the ordinance struck down in R.A.V.(24) As discussed below, the distinction between the discriminatory selection model and the racial animus model, so significant in the argument advanced by the State of Wisconsin, was largely lost in the Court's decision in Mitchell Nonetheless, Mitchell must be seen both as a challenge to the Wisconsin statute itself and as a part of an ongoing judicial consideration of the constitutionality of bias crime laws.

      The events that gave rise to Mitchell took place on October 7, 1989, in Kenosha, Wisconsin, when Todd Mitchell, a nineteen-year-old black man, directed and encouraged a number of young black men and boys to attack a fourteen-year-old white boy, Gregory Riddick.(25) Mitchell selected Riddick solely on the basis of his race.(26) Mitchell was convicted of aggravated battery for his role in the severe beating -- a crime that carries a maximum sentence of two years under Wisconsin law.(27) Mitchell's crime also implicated the Wisconsin bias crime statute, which provides for the enhanced penalty of racially motivated crimes.(28) Under this statute, the potential penalty for an aggravated battery is increased by five years if the perpetrator of the assault selected his victim on the basis of the victim's race.(29) In addition to Mitchell's conviction for battery, he was also found to have acted out of racial bias in the selection of the victim.(30) Mitchell, whose maximum possible sentence for this offense was seven years, received a prison sentence of four...