Punishing Hatred and Prejudice

This article undertakes a detailed examination of the justifications advanced for the national and international rush to enact and apply 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 the enhanced penalties imposed by hate and bias crime legislation. We further seek to demonstrate that this literature, to date, has sadly failed to provide both an adequate moral justification and an acceptable doctrinal framework for this politically popular form of state action. The article is divided into four parts, corresponding to the four principal rationales for hate/bias crime legislation that have advanced over the past decade or more. Part I considers the "wrongdoing thesis" - the claim that the harms perpetrated by offenders who are motivated by group-hatred or prejudice represent wrongs more serious than those perpetrated by defendants who commit the same offenses with different motivations. We work through an extensive catalogue of harms that are commonly claimed to be uniquely associated with hate- and bias-motivated crimes: elevated physical and psychic injuries to principal victims; wide-spread fear within the principal victim's community; a diminished faith in the legal system and an associated instability within the larger social order; vigilante acts of retaliation by victims and their communities; the publication by such criminal acts of harmful messages corruptive of the moral order; and the associated, but independent harm of the state being complicit whenever it fails to express in law the moral outrage that such "statements" properly incite. As we demonstrate, even if social science ultimately vindicates the empirical claims made by those who propound the various wrongdoing theses, there are conceptual and moral problems that prevent these arguments from justifying the blanket sentence enhancements imposed by existing hate and bias crime legislation. Part II takes up different versions of what we call the "expressivist thesis" - the thesis that the disrespect for communities expressed by acts of group-hatred and prejudice properly invite denunciation by the state in the form of elevated criminal penalties. As we argue, either the expressivist thesis is redundant with the wrongdoing thesis, and so invites the problems articulated in Part I; or it depends upon a free-standing expressivist theory of punishment, and is, for that reason, unsustainable. Part III considers what we call the "culpability thesis" - the thesis that hate and prejudice constitute uniquely culpable mental states that justify penalties more severe than are meted out for other forms of viciousness. We demonstrate in this Part that if hate and bias are construed as culpability criteria, then hate/bias crimes are novel doctrinal inventions that are more at home within character-based theories of the criminal law that are best justified by political perfectionism, as opposed to act-based theories that are more in harmony with classic political liberalism. Finally, Part IV takes up the "equality thesis" - the thesis that 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 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.