Tuesday, May 08, 2007

Stop Hating on Hate Crimes?

In the past, I’ve found “hate crimes” legislation troubling because any differential in punishment – such as the punishment for killing because of hatred minus the punishment for killing for some other reason – seems to constitute a punishment of mere thoughts. But perhaps not. I find Eric Zorn’s argument here fairly persuasive:
The simplest answer to this is that when hatred for a particular group or class or race is the obvious motive for an attack, that attack becomes, in effect, two crimes. The first is the offense itself. The second is the implicit threat that offense makes to other members of that group, class or race.

That second crime has new victims.

Consider an incident in which someone uses spray paint to deface the garage of a house into which a gay family has just moved.

The crime is vandalism, no matter what. But to argue against the idea of hate crimes is to argue that it shouldn't matter at all to the law whether the graffiti is a smiley face or some hostile, anti-gay slur.

The smiley face is a petty annoyance. The hateful slogan is, in effect, a threat to other gay people in the area -- they might be next.
In essence, the hate-crime punishment is not for having bad thoughts, but for issuing a threat of future violence – something we generally find acceptable to punish, even on libertarian grounds.

Compare David Friedman’s argument for punitive damages in the case of “strategic torts,” that is, torts intended to send a threatening message to other potential victims. If the threat is successful, no future torts will need to be performed. As a result, the tortfeasor gets the benefit of committing many torts – by altering other people’s behavior – while only getting punished for one tort. Similarly, in the case of a hate crime, the hater can get punished for just one or a few crimes, possibly minor crimes, while getting the benefit of affecting many people in the threatened group.

My main concern with this position is that I think most people will tend to perceive hate crime laws as simply protecting the feelings or sensibilities of the protected groups, just as I did before I thought about it Zorn’s way. Indeed, that is often how the laws are justified even by their proponents. When they speak of harms to the protected groups, they often describe the harm in terms of “dignity” rather than threatened rights of person and property. Furthering this perception is the fact that hate crimes laws can be applied even in cases where the motive is not obvious – and thus could not plausibly constitute a viable threat to others.

And the perception matters, since laws like these can set precedents that pave the way for more laws based on (what are perceived to be) similar justifications. There is a slippery slope risk here.

UPDATE: Constant has a reaction over at Distributed Republic, with some good back-and-forth in the comments section (where I've chimed in).


Unknown said...

Can't this same effect be achieved by charging the graffiti artist with criminal harassment, battery, or the like, in addition to the underlying crime of graffiti?

Ouroborous said...

I think Zorn's position is untenable. EVERY crime then has two victims, because every crime has a motivation and thus, carries a threat of future harm to a certain group. When a drug addict mugs a little old lady for her purse for drug money, that assailant has committed an offense against that particular old lady, and against ALL little old ladies in that they all must now fear walking the streets at night. The second part is really not another offense. It's punishment for one's motivation to commit the crime, i.e., thought.

Glen Whitman said...

Kevin the 2nd -- Your objection is very similar to one that Constant made at Distributed Republic, so I'll just paste what I wrote there:

"Not only does the mugger not intend to deter people from venturing out, but that effect is actually counter to his purpose. He can only get the benefit of mugging if there are people there to be mugged, so his mugging actually reduces his future mugging opportunities. The racial intimidator, on the other hand, benefits from intimidating members of certain groups into staying home. He thus gets continuing benefits from his initial act of intimidation."

So there's a big difference in terms of intent. The mugger's intent is not intimidation; intimidation is a side effect that actually detracts from the value of the immediate crime. The hater's intent is precisely to intimidate, so the intimidation creates value to him above and beyond that of the immediate crime.

Ouroborous said...


Perhaps your example is true when it comes to a crime like vandalism, but what about a racially-motivated mugging? Suppose a mugger only robbed Asian-Americans due to the muggers need for money, and due to his hatred of Asians. Then, the mugger certainly would not benefit from intimidating Asians not to leave their homes b/c therefore, as you point out, he would have fewer people to mug. But his crime would still be a racially motivated hate crime, and he would still be punished simply for his the motivation that led him to rob an Asian-American over, say, a caucasian.

Glen Whitman said...

Kevin -- okay, you've identified a kind of case where hate crime laws (as currently written) would apply, even though Zorn's/my justification does not. I kind of doubt such cases are common, but they could certainly exist. As I pointed out in the original post, I think one problem with hate crime laws as currently written is that they apply even in cases where deliberate intimidation can't be the issue.

But if you're resting your case against such laws on cases like that, then I think you're conceding Zorn's argument in principle: hate crime laws can be justified as punishment for implicit threats, not thoughts. If your argument constitutes a general case against hate crime laws, it is only because of practical difficulties in distinguishing the good applications of the laws from the bad ones. And I might even agree; I'm not totally sold on hate crime laws myself. But there's at least a respectable case for them.