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?
Motives for crimes are relevant when charging/sentencing offenders, IMO.
Agreed.
Also it makes sense that if (not necessarily always) law enforcement thinks the crime had a wider target than just the victim, they would treat it more seriously as an illegal attack on more people than just the immediate victim. Assaulting a person of one group to drive the rest out of an area is sort of like a mobster ‘making an example’ of one store owner so all the store owners on the street will pay him protection money. Threat/intimidation by proxy.
Hmm, this is something which I’ve thought about a lot, and your post provides some interesting thoughts. I’d never really considered it within the framework of determinism before. But I think that, yes, on balance, there is something particularly odious about hate crime. I don’t think ‘hate speech’ should be punished; I’m with you on that. But it’s interesting that our moral intuitions do cry out for worse punishment for hate crimes. Yes, I’ll be more offended if you call me a fag than if you call me a jerk, but in neither case will I want you punished. If you mug me, though, I’ll want you punished. But if you seek me out and steal from or beat me up on the basis of my sexuality, there’s something…extra there, and I think that has to be considered. Though perhaps I’m thinking in terms of punishment, pure and simple, rather than in deterministic terms, where such desires for pure punitive measures don’t hold as much weight.
Whatever we think about the proper punishment, whether hate crimes deserve more than non-hate crimes, I think it’s pretty uncontroversial to say that hate crimes have an added moral dimension that non-hate crimes lack. To emphasise: that may not matter, or it may, when we consider crime categories and legal punishments, but I think it’s quite correct to say that such crimes (and such opinions, though they shouldn’t be punished at all) are odious in a more particular way, or especially odious. That’s the difference between horrific, indiscriminate massacres of civilians and the Holocaust. Even if millions more are killed deliberately but indiscriminately, there’s something which makes the deliberate targeting of people based on an ethnic/racial/religious/sexual characteristic worse, even if less people are killed. I’m going on my intuitions here, apologies if this is a bit of a ramble.
So that’s an interesting view. In terms of punishment, the nature of a crime in terms of ‘hate’ may or may not matter, even if we morally judge hate crimes as especially horrible. Is there a link there? Do we punish more morally outrageous things more severely? Or are these separated to an extent? If so, we could be justified in both decrying hate crime more in moral terms whilst not imposing extra punishment legally. I don’t know…I’m thinking aloud here.
Another twist: you mention the reformatory aspect of the criminal justice system. In this sense, it’s arguable that a homophobic murderer is more easily cured or reformed than someone who just likes killing. Homophobia can be reversed, people can be convinced out of it, whereas psychopaths are much harder to reform, I would say. So even though we might morally disapprove of the racist killer more than the joy killer, on the basis of determinism and reformation we might actually punish the racist less than the joy killer, because racism is easier to reform than pure monstrosity, however that comes about.
I’ll stop there. This is all getting very complicated… But at the very least, I’ll stand by the point that hate crime is particularly and especially evil. Ay, there’s the rub: do our moral intuitions on that translate into legal/punitive actions?
No, we should abolish the whole legal concept of “hate crime”. It may be useful for investigative purposes or in sentencing, but that’s exactly all the benefit we get from it. The drawbacks — political especially — far outweigh the advantages of keeping the concept, and they downplay the action itself.
“If you crack your neighbor’s skull, it doesn’t count that you
Went at him ’cause he’s Gay, or Black, a Vegan, or a Jew.
I’ll hang you high in any case because of what you *do*.
That’s why I am not a guilty Liberal.”
–Leslie < Fish
“Hate speech” sounds like a punishable offense. That’s why I don’t like it. But it’s not. I fully support the SCOTUS view of free speech: As open as is consistent with a free society.
A person’s words and writing can come in in the sentencing part of a trial — they indicate, possibly, the probability of recidivism (by possibly showing motive).
I have yet to hear a coherent definition of the phrase “hate speech”.
It always comes down to the decider question: Who gets to decide and why?
The president of the US?
The congress?
You?
Me?
A commission? Composed of whom and why?
The most easily offended person that can be found?
I’ll repeat the anecdote (true!) that I’ve related here before. My wife is a public school teacher. One African-American mother of a student walked through their school (during school session) yelling at the top of her lungs: “I hate all white people!” over and over.
Not only does CRT not consider this to be “hate speech*” but it’s defined as not even being racist. How’s that for Orwellian Post-Mo bullshit?
(* Nevermind that the verb hate is the critical word in the speech.)
For self-defense purposes, the particulars of who/why someone is choking me doesn’t matter in the moment, as it would slow down my responses, (having to decide if motive was “hate” or I was merely the convenient target). Stopping them and/or getting away is the enough to think about then.
Later, everything will be sorted out by the legal system that has it’s own rules. I would consider being choked “unacceptable,” and enough for me.
I dislike having legally define “hate” crimes. That’s partly because the “hate” is subjective, and also because it leads to calls for the categories of “hate crime” to be continually expanded, and also because “hate crime” is too easily confused with the concept “hate speech”, giving the impression that “hate speech” is criminal.
Having said all that, I am entirely happy with judges have considerable latitude in sentencing, and with them using that latitude according to the motivation for the crime, the effect on the victim, and the effect on wider society.
I have little respect for the idea of ‘hate crimes’ because it shifts the emphasis from what people do to how their acts are perceived by the victim. From ‘intent’ to ‘reception’.
Unless you take care to ‘validate’ those perceptions as reasonable you might be unlucky enough to say something well meaning but which ‘triggers’ someone who is unreasonably sensitive or who has a political axe to grind.
Uh…. the purpose of defining a “hate crime” is to describe the intent and motivation of the perpetrator. It isn’t a matter of victim perception other than to recognize that the victims are members of a class the perpetrator intended to harm. Intent is the whole point.
And how does that work in practice?
I quote from the UK web site: https://www.cps.gov.uk/crime-info/hate-crime
“The police and the CPS have agreed the following definition for identifying and flagging hate crimes:
“Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person’s disability or perceived disability; race or perceived race; or religion or perceived religion; or sexual orientation or perceived sexual orientation or transgender identity or perceived transgender identity.””
There is no legal definition of hostility so we use the everyday understanding of the word which includes ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike.”
My emphasis.
Perhaps rules are different on different sides of the pond?
The federal “hate crime” statute in the US, 18 USC section 249, addresses “offenses involving actual or perceived race, color, religion, or national origin” and “offenses involving actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability.”
The “perceived” part of the statute, however, concerns the perception not of the general public, nor even of the victim, but of the offender. In other words, if the offender willfully caused bodily injury to a Sikh because the offender perceived that person to be a Muslim (or vice versa) or willfully caused bodily injury to an Italian because the offender perceived the that person to be a Jew (or vice versa), or because of a similar mistake of perception regarding the other categories listed, the offender commits a “hate crime” under the federal statute.
One justification that occurs to me for punishing “hate crimes” more severely than I guess what would be called non-hate crimes, is that, from a certain point of view, they could be considered a minor form of terrorism, which the code of federal regulations defines as “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” The person committing the hate crime may not be thinking explicitly in such terms, but they are at least unconsciously trying to influence the general social and political climate by their acts, because they are acting against some particular type of person or group, once which they see as worthy of hate.
I also suspect that, being “ideologically” motivated, “hate crimes” are more contagious than other crimes, liable to trigger or instigate further acts of similarly targeted violence from fellow bigots, whether or not they have any direct connection. I’m not sure of the data on this, but if it is so, that could be a reason to try to make the commission of “hate crimes” more frightening to would-be criminals.
I agree with this view. It seems to me that ‘hate crimes’ are those that are aimed at affecting a group of people of which the target is a member. I suppose the motivation for these crimes being treated as more serious comes from the historical record of where these crimes have very many times led in the past to mass violence.
I agree with your contagion point. To put it in terms of Jerry’s discussion of the purposes of punishment, hate crimes need extra deterrence. At the extreme, hate crimes become a prelude to civil war or genocide. The white-nationalist element in the Jan 6 attack on the Capitol being a case in point.
I would compare hate crime legislation to the First Amendment protection for religious practices. At first glance it may seem daft. Religious objections to common sense safety precautions like vaccination have to be respected, why? Because civil war really, really, really sucks, that’s why, and we know from bitter European historical experience how touchy these issues are. Society is safer in the long run if we declare special treatment for certain kinds of insanity.
My answer is no “but”.
Burning a cross is significantly different from a typical arson because it is a threat to all blacks in the area. Graffiti saying “Rabbi Cohen must die” is different than graffiti saying “Jews must die.” A crime that is clearly intended as intimidation to a large group of people is different than other crimes.
But this is not always an easy call. The Matthew Shepard was clearly a horrific murder. Was it also meant to intimidate gays? Probably.
Off the top of my head, I think there should a separate crime of “group intimidation” or something like that. Perhaps there are reasons this would be equally inappropriate.
Or perhaps not. And perhaps it was little to do with Shepard being gay at all (and much more to do with drugs). It seems that a defence attorney — trying to defend a person clearly guilty of a horrific murder — came up with the supposed mitigation “he made a pass at me and I freaked out”, a strategy that then backfired.
+1
I was going to write something similar to 7 and 8 above. I basically agree with the arguments Jerry mentioned, but one could argue that hate crimes are more contagious and thus need a stronger deterrent. I think that history certainly bears out the contagiousness of hate crimes.
Of course, one would have to have a sensible definition of hate crime.
I don’t know what the current status is now, but there was some talk in Germany of doing away with some of the distinctions between various degrees of murder, manslaughter, and so on. The rationale was that some of the distinctions were, historically, motivated by anti-Semitism, i.e. Jews poisoning wells or otherwise killing people via unfair means, whereas the good citizen fought an honest fight (which might have ended in the death of the opponent).
I think not, but I am not certain. Hating, by itself, is not and should be not a crime. If one acts upon such hate so as to harm someone, then that is the crime. The problem is the word “harm.” If some screams “N- – – – r” at someone on the street it is a verbal assault and should be a crime because it harms the victim. Do we need the concept of “hate crime” to achieve that?
Screaming at someone on the street doesn’t constitute an assault.
Although specific definitions vary by jurisdiction, an “assault” generally requires a threat to do violence, coupled with an apparent ability to carry out the threat, such as to create a well-founded fear in the victim that violence is imminent.
It might be considered assault, given enough proximity and the nature of communicable disease.
Thanks Ken. I always appreciate you sharing your legal knowledge and wisdom.
The concept of hate crime arose out of the postmodern movement’s fixation on speech aggressions and the feelings of the victim. As such it cannot be measured or compared to nonhate crimes because there are no objective criteria much less rational legal ones to make a determination. It is the
RESULT of hate that counts. A victim of a hate crime is usually equal to that of a nonhate crime, and the mental state of the survivors is exactly the same. Punish the crime itself instead of opening doors to arbitrary and therefore
challengeable criteria for punishment.
As I see it, speech is never the crime in itself: it is the CONSEQUENCE of the speech which is the crime. It is INCITEMENT which breaks the law, not the speech.
The same for action.
INTENTION modifies the gravity of the crime, but does not change the CONSEQUENCE of the speech.
Hate crimes led to hate speech and loss of free speech. Down with hate _______.
I may be on thin ice here, but would punishing hate crimes open the door to blasphemy crimes?? The rationale for punishing both seems just a tad similar.
I see no similarity. Hate crimes (defined as crimes that are motivated by hate) are actual crimes against someone. Blasphemy is an imaginary crime against imaginary beings. There is no victim of blasphemy in the real world.
I’m not breaking new ground here, but agree that adding a “hate” intention test does not modify the crime. The crime is the crime. I’m not persuaded by the APA’s statements. They have become very ideological lately. (Witness the declassification of trans as a disorder on the basis that the APA wished to destigmatize trans, instead of for a scientific reason, or the new treatment on toxic masculinity.)
It’s also worth pointing out that the US sees approx 6000 hate crimes each year per DoJ (only 10% involve violence, or 600-ish) while there were 680,000 violent crimes committed in 2018. The overwhelming majority of crime is not for bias/hate reasons. And hate crimes are in a multi-decade declining trend.
Although much has been made of the supposed increase during Trump’s presidency, it is unclear if the increased number of police department reporting to hate crimes represents an increase in crimes, or more departments reporting. The ADL is sometimes slippery too. In 2019(2018?), they reported a 57% increase in anti-semitic crimes due entirely to treating each of the bomb threats called into JCCs by the deranged Israeli teenager and the Bernie-bro trying to impress his girlfriend a separate crime (there where hundreds of such calls). And the ADL press release doesn’t mention the decline in anti-semitic assaults during the same year (available from the ADL’s powerpoint presentation), preferring instead to focus on the inflated incidents. Of course, zero is the only acceptable number.