I’ve recently read several books on free speech, all of which emphasize a fairly strict construal of the First Amendment. That means that expressions that offend people, including “hate speech”, bigotry, and so on, while they may be offensive, are legal.
But while the verbal expression of bigotry is legal, the physical expression is not—not when it’s the motivation for a hate crime. And that got me thinking about the justifications for giving extra-harsh punishments for hate crimes. When I mention “hate crime”, I’m not referring to crimes that wouldn’t be crimes at all without the bigotry, so I’m not including Holocaust denialism or blasphemy (neither crimes in the U.S. but both in many other lands). I’m using the definition of hate crime given on the FBI website:
A hate crime is a traditional offense like murder, arson, or vandalism with an added element of bias. For the purposes of collecting statistics, the FBI has defined a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.” Hate itself is not a crime—and the FBI is mindful of protecting freedom of speech and other civil liberties.
And here’s the FBI’s explanation of what’s considered a hate crime:
Hate crimes are the highest priority of the FBI’s civil rights program because of the devastating impact they have on families and communities. The Bureau investigates hundreds of these cases every year, and we work to detect and prevent incidents through law enforcement training, public outreach, and partnerships with community groups.
Traditionally, FBI investigations of hate crimes were limited to crimes in which the perpetrators acted based on a bias against the victim’s race, color, religion, or national origin. In addition, investigations were restricted to those wherein the victim was engaged in a federally protected activity. With the passage of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, the Bureau became authorized to also investigate crimes committed against those based on biases of actual or perceived sexual orientation, gender identity, disability, or gender.
We see here that the high priority for investigating hate crimes rests not on the motivation alone, that is, it’s not an explicit attempt to eliminate feelings and expressions of bigotry, which are protected by the First Amendment, but because of the higher impact such crimes are said to have on communities. They are seen as more serious crimes.
The American Psychological Association asserts that hate crimes have a disproportionately large effect on the victims themselves:
People victimized by violent hate crimes are more likely to experience more psychological distress than victims of other violent crimes. Specifically, victims of crimes that are bias-motivated are more likely to experience post-traumatic stress, safety concerns, depression, anxiety and anger than victims of crimes that are not motivated by bias.
Hate crimes send messages to members of the victim’s group that they are unwelcome and unsafe in the community, victimizing the entire group and decreasing feelings of safety and security. Furthermore, witnessing discrimination against one’s own group can lead to psychological distress and lower self-esteem.
But when thinking about hate crimes just in terms of the three valid rationales that I, as a determinist, see for punishing someone (deterrence, sequestering someone from society, and reformation), I see no obvious justification for punishing someone differently whether they, say, kill someone because he’s a Jew or kill someone because they don’t like him for non-religious reasons. Does a higher punishment for the same crime, but one motivated in part by bias, deter an offender? I doubt it, but I’m not sure we have good data on that.
In terms of sequestering someone from society, a higher punishment for hate crimes assumes that those who commit the are more dangerous than those who commit the same crime but with a non-“hate” motivation, and thus more likely to do damage if paroled at the same time. Again, I’m not aware of data on this, which this bears on the third rationale: reformation.
Is it easier to reform someone who commits a murder based on bigotry than someone who kills, say, simply for the thrill of killing? Who knows? Perhaps through treatment you can wean someone from bigotry more easily than a sociopath who simply hates people in general. Again, I’m sure we lack data.
The other issue is that for some “hate crimes” you must judge the motivations of the criminal, and ascertain that they play a significant role in the crime. Sometimes that might be easy, as in the case of a person who hates Muslims burning down a mosque (especially if you have a documented history of bias). In others that’s no so easy, but clearly we need to use a “beyond reasonable doubt” criterion for ascertaining motivation.
That might not always be easy. For example, all 20 of Ted Bundy’s victims were women. He sometimes had sex with the corpses. Other serial murderers rape women before they kill them. Is this because they are biased against women, or because part of their motivation is sex, or because they find it easier to overcome women, who are usually less powerful than men? In other words, did Bundy commit “hate crimes”? Well, in his case it hardly matters, for he was electrocuted. But for other crimes it may be hard to suss out a motivation, and we all know of criminals whose motivations are unclear.
It becomes even more difficult when bias is part of a pathology—as Bundy’s may have been. Mental illness, which can manifest itself as bigotry, is a mitigating factor for punishment, mandating psychiatric treatment instead of straight incarceration. Do you use the concept of “hate crimes” with criminals who have mental problems?
When thinking about whether an offender should be punished more strongly because he or she is motivated by bigotry, I don’t see a clear justification based on rehabilitation, sequestration, or deterrence. But that’s irrelevant to how many people think about hate crimes. In effect, they are saying that hate crimes are more serious crimes than the identical offense committed without obvious bigotry. In other words, burning a synagogue because you hate Jews is seen as a different crime from doing the same amount of damage by burning a building because you don’t like landlords. Behind the “hate crime” rationale, then, is the psychological damage that is said to be attendant on both victims and society.
I’m prepared to believe that this is the case, and understand that there are data supporting the excess damage, at least in terms of victims. But of course there’s more psychological damage caused to a person and a community when you insult their race, religion, or gender than when you simply call them a jerk. Offense is the price we pay for free speech. In light of that, is “excess fear” or “trauma” in victims a reason to increase the punishment for a crime, or create a new class of crime?
On balance, I think it is, but my mind isn’t fully made up on this issue. The same “harm” that attends legal free speech (and let’s face it—some people’s feelings are hurt by free speech) is also the same kind of harm that attends individuals and communities victimized by hate crimes. If someone calls you a “dirty Jew” rather than a “jerk”, you may be much more offended, even though no crime is committed. But if someone punches you because you’re a Jew as opposed to punching you because you’re a Republican, does the former crime, even if it causes more offense and trauma, warrant more punishment?
Weigh in below: do you think the concept of “hate crimes”, with the attendant higher punishment attached to them, a good one?