Saturday, October 19, 2013

Hate Crime: First Amendment Issue?

Not too long ago I believed that the idea of a 'hate crime' was, on the whole, a bad one. I was mainly persuaded be the following argument:

According to the law, we determine the nature of a crime by what was actually done. When we classify an action as a hate crime, we are punishing the criminal for the very thoughts in his head, or the content of his speech. At the very least, this is a violation of First Amendment rights. At worst, we are legitimizing the Orwellian idea of 'thoughtcrime'.

Upon reflection, however, I realized that this argument misses the point of what I think is the most important reason that some crimes should be classified as hate crimes. When the law is applied to an act to determine its criminality, we already do consider the motivations and thoughts of the actor in the case. For example, if one person causes the death of another, we ask whether the act was purposeful, whether it arose from a moment of extreme provocation or planning, and so on. In other words, intent, what was going on in the actor's mind at the time, is essential for determining the criminal nature of the act.

One of the main reasons for this consideration is how much of a threat the criminal presents to the community. This is why, for example, we consider intentional, deliberate violent crimes to be worse than accidental violent crimes or crimes of passion. A person who kills someone out of anger upon catching him cheating with a romantic partner, for example, is considered far less dangerous to a community than one who plans and then executes a shooting spree in a public place. A person who kills someone after planning the crime ahead of time also presents a larger danger to a community than the 'heat of the moment' killer, since he reveals himself to be capable of killing at least one person even after sustained reflection. While the danger is still mainly confined to a single target, the killer is still a potential threat to the wider community in this sort of case since he might become homicidally angry at someone else.

A person who commits a hate crime also presents a wider danger to the community because her intention to harm dos not have a single target. The target of her hate or anger is an entire class of people, as the evidence of her own expressed intent and beliefs reveal. The harm that she does, or intends to do is likely to be far more widespread.

The way the law determines whether or not a crime is a hate crime is nearly identical to the way it determines whether a homicide is first degree murder, second degree murder, or manslaughter. I think this sort of distinction is necessary and appropriate. Hence, I think that the separate classification of hate crime is appropriate as well.

We just need to be careful, as a society, that we don't become overzealous in applying the term to thoughts and speech alone, or to morally repulsive but relatively harmless actions.

Amy Cools
Sacramento State Philosophy Alumna


  1. I’m sympathetic to this, Amy, especially to your point that the criminal law already makes plausible use of internal states of mind in determining degree of punishability.

    My understanding of how hate-crime statutes work is that a crime, say murder, where the hateful motive is present merits more severe punishment than where it isn’t. You say that what justifies this is the fact that the person with the hateful motive is more dangerous than someone who does the same thing without the hateful motive. I think you mean more dangerous primarily in the sense that this person is more likely to commit the crime.

    But take any “non-hateful” motive for an instance of first degree murder. I wonder what to make of the claim that this instance of intentional, pre-meditated murder is less dangerous in that sense than one with the hateful motive. You suggest that the latter could also be more dangerous because they have a wider pool of targets, but that’s unclear. It depends on what the “non-hateful” motive is, right? Also, determining whether one is more dangerous than the other probably depends on what other circumstances have to be met in order for the relevant motive to trigger the act. The fact that the victim belongs to the relevant protected class is rarely sufficient to trigger the hate crime, right? Finally, would you distinguish the punishability of someone who committed a hate-crime murder from that of a serial killer who’s caught after victim number one?

    1. For the last point, I'm a little unclear about the serial killer caught after victim number one. Since by definition a serial killer is one who kills multiple times, do you mean a killer who intends to kill more than one person but is thwarted by being caught, but there's evidence that the killer intended to kill more people?

      I think when it comes to a 'non-hateful' motive for killing, one who kills from strong compulsions, usually caused by mental illness, would be a prime example. Many serial killers belong to this category, and I think are subject to long prison sentences for similar reasons as are hate-crime killers: they present a clear danger to society as large, or to large numbers of people. So yes, it does depend on the non-hateful motive.

  2. Russell DiSilvestroOctober 22, 2013 at 10:11 PM

    Consider X punching Y in three cases:

    1. X punches Y because X hates Y.
    2. X punches Y because X wants Y's money.
    3. X punches Y because X hates Y and wants Y's money.

    I am sympathetic to the idea that 1 should get a harsher punishment than 2. I'm not so sure about 3--perhaps it should get a harsher punishment than either 1 or 2.

    But now consider two variants on case 1:

    1A: X punches Y because X hates Y for being A.
    1B: X punches Y because X hates Y for being B.

    I am not so sympathetic to the idea that 1A should be punished more harshly than 1B, no matter how we fill in the 'A' and 'B'. This is where I think we may veer into Orwellian thought crimes.

    1. I think we're more or less in agreement in your first three cases.

      For the second set of variants, while I do think that while we should be vigilant against the danger of veering into Orwellian thought crimes, I think there's also important social and historical considerations that should be taken into account when considering the nature of the crime and the danger the criminal poses to society.

      We can see this in the ugly history of lynching in the US. While torturing and hanging an individual is always an incredibly horrific crime that merits strong punishment, we can see the real-life consequences to society as a whole in the revealed motives of the criminal.

      If we were to find the killer in one series of lynchings and identified him as one who hates people who wear blue jeans, we would justifiably imprison him for life since he presents a clear danger to a large section of society (presumably he has a severe and unusual mental illness!) He is unlikely to inspire others to commit similar acts.

      But consider the difference when we catch the killer in another series of lynchings where the motive was his expressed hatred of black people. Not only does he present a danger to a large part of society in his own person, but his hatred is one that is now and has been historically a destructive force in our society shared by a large number of people. His killings not only hurt the individuals and families he targeted, but he serves as a sort of representative and a possible hero to other angry racist people, and part of the danger he presents to society is the likelihood that he inspires violent racism in others. We've seen this happen so many times in history, from the American treatment of minorities to the violent anti-Semitism in Europe.

  3. Amy, this is an interesting piece. I am not sure I agree with you that the justification for taking a person's state of mind into account is the degree to which this person constitutes a threat to society. Or at least I am not sure it is a very good justification.

    We do not typically think it is permissible to punish people for crimes they might commit. So I think you must be committed to some kind of consequentialist rationale here according to which punishing hate crimes more severely decreases the overall crime rate more than if we did not.

    Suppose we consider the class of all first degree murders and then the proper subset of those first degree murders that are also hate crimes. Is it true that by punishing hate crimes more severely than first degree murders that are not hate crimes we thereby diminish the overall rate of first degree murder more than if we punished all first degree murders the same? I don't know, but it's an empirical claim, and it would be interesting to see some evidence for it.

    I think the most common justification for taking a person's state of mind into account is just that an action done with mens rea is more culpable than one that is not. People who believe hate crimes should be punished more strongly believe that actions done from this motive are more culpable still. If you think of the culpability of the action as a function of the character of the person initiating it, this can make a certain mount of sense.