Feb 10, 2008

are hate crimes qualitatively different?

One way the affirmative might approach the March/April LD resolution is to deny the distinction between hate crime and any other sort of crime. This is the route David Adams takes in "Punishing Hate and Achieving Equality," found in Criminal Justice Ethics, Winter 2005 issue. He lays out, then knocks down, several justifying reasons for hate crime enhancements. They include (my summary):
1. Hate criminals are more likely to reoffend, so hate crimes require a "higher threshold of deterrability."
2. Hate criminals are more dangerous.
3. Hate crimes would otherwise be underinvestigated.
4. Victims of hate crimes would otherwise be less likely to receive--or seek--police protection.
5. Victims of hate crimes are more vulnerable; the law recognizes stiffer punishments for other victimized groups, including children and the elderly.
To #1 and 2, Adams argues that the intention to commit harm has no necessary connection to the justifying aim of punishment. Even if the methods of a hate crime are more brutal or terrifying, the methods, not the prejudicial belief, should be the ground of punishment, so no special enhancement is necessary. (A person who tortures random victims for sport is as evil, in this reckoning, as a person who tortures women out of misogyny.)

Furthermore, Adams argues that, against #1 and #2, hate criminals as a class are not unique.
There seems to be little reason to think that those who act from hateful beliefs and desires invariably are more dangerous, more brutal, or more likely to victimize the defenseless than those who act from other sets of beliefs and desires. And there is little evidence that bigotry inevitably gives rise to intentions to bring about worse harms than would otherwise obtain as a consequence of the bare intention to harm, nor that the intentions of bigots, as contrasted with unprejudiced criminals, are necessarily more firmly held or reflect greater purposefulness.
Adams' argument finds support in an article titled "Distinctive Characteristics of Assaults Motivated by Bias," written by Steven Messner and Suzanne McHugh, in the August 2004 issue of Criminology. Despite the title, the authors find very little that distinguishes hate criminals from ordinary criminals. They are, rather, equal-opportunity violators. Analyzing 11 states' data from the National Incident Based Reporting System, they conclude:
The evidence from this study suggests that bias offenders and conventional offenders are more similar than different in the most common forms of bias offenses. Offenders--no matter which type--are at least as likely, and perhaps more likely, to engage in other illegal activity, as reflected in drug use. In addition, the situational characteristics of bias offenses, at least the ones we have been able to examine, are not so different from those of conventional assault. Bias assaults, like other assaults, typically involve intoxicated offenders targeting men. In short, while there are undoubtedly unique features of some of the assaults motivated by group hatred, the evidence points more to their similarity to other forms of violence.
Returning to Adams' list above, #3 and #4 might fall outside the scope of justice, depending on how the affirmative defines it (retributive justice, for example, looks backward, not forward, when justifying punishment). #5 smacks of stereotyping; there might be no good reason why ethnic identity or sexual orientation would make a victim more vulnerable.

Your comments and questions, as always, are welcome.


josh cole said...

Are you sure that you're going through the certification process? You keep on "reading" and "writing" and stuff.

Bailie said...

Do you think there is a valid argument in the idea that we already try people based on their thoughts?

Pre-meditated murder i.e. thinking about killing someone before you kill them receives a harsher punishment than an action committed w/out mens rea...

Jim Anderson said...

josh, I have until March 31 to finish. I'm 2/3 done, and I keep telling myself I can make it.

bailie, of course there is. The real question is whether prejudice somehow makes someone more guilty.

Anonymous said...

then as bailie said...how do any of the other arguments that say we need to punish the action and not the motive work? those arguments never seem to address the point that because we already do try people based on thoughts then the real issue is whether that thought justifies the enhancements? This sounds more like a complaint sorry. The author you talk about, for example, doesn't seem to do that.

Well, I said...

I'm a bit confused- about (5.) - I don't understand your point...
let's say there is crime where a man is killed because of his race then others who share the same ethnicity are now vulnerable not just to crimes as all other civilians are but to a crimes of victimization where the person is targeted because of ethnicity - increased vulnerability, i would think...

I think I'm missing something here

Jim Anderson said...

Well, I said...,
Vulnerability is tricky. It might mean "more likely to be attacked," per your example, or it might mean "defenseless." The first is only mildly controversial--the bigot, after all, might have only one target in mind, even though the choice is made based on prejudice--but the second treads close to paternalism.