Feb 17, 2008

the hate crime enhancement fork

Defining hate crime enhancements is critical to the March / April resolution. I've offered a good reason to accept the definition found in the US Sentencing Guidelines, but it's only one of two major models of hate crime enhancements--which sets up an interesting dichotomy. In "Examining the boundaries of hate crime law: Disabilities and the 'dilemma of difference,'" found in the Spring 2001 edition of the Journal of Criminal Law and Criminology, Ryken Grattet and Valerie Jenness show that hate crime enhancements have two distinct criteria: "discriminatory selection" and "racial animus." Taking after Frank Lawrence's analysis in Punishing Hate: Bias Crime Under American Law, they note:
The discriminatory selection model defines hate crime solely on the basis of the perpetrator's discriminatory selection of a victim, regardless of why such a selection was made....

With this view, victim selection based upon vulnerability would be punished the same as a situation where a victim was selected to express hatred. In other words, the discriminatory selection model does not distinguish between symbolic and actuarial crimes. It is inclusive of both kinds. It is also the most popular form of the law, with roughly two-thirds of the state laws and the existing and proposed federal laws based upon it. Finally, this form of the law was legitimated in 1993 in Wisconsin v. Mitchell, the first case in which the Supreme Court expressly sustained a modern bias crime law. [Jim's note: Unsurprisingly, this model is the basis for the enhancements found in the United States Sentencing Guidelines.]

In sharp contrast, the racial animus model focuses attention on the reason for the discriminatory selection of victims. This approach assumes that the motivation for the selection of a victim is less instrumental and more expressive; perpetrators use the act of victimization to express animus toward the category of persons the victim represents (i.e., a person of color, a homosexual, a Jew, a disabled person, etc.). As such, the racial animus model follows the distinction between actuarial and symbolic crimes by defining the former as beyond the domain of the law and the latter within the desirable domain of hate crime law. As Lawrence explains,
This model is consonant with the classical understanding of prejudice as involving more than differential treatment on the basis of the victim's race. This understanding of prejudice, as reflected in the racial animus model of bias crimes, requires that the offender have committed the crime with some measure of hostility toward the victim's racial group and/or toward the victim because he is part of that group.
...By definition, all cases falling under the rubric of the racial animus model are also cases that fall under the rubric of the discriminatory selection model, but not vice-versa. Thus, the racial animus model implies a more stringent approach to hate crime than does the discriminatory selection. From Lawrence's legally and politically strategic point of view, the discriminatory selection errs on the side of over-inclusion. He argues that a focus on the racial animus model is preferable precisely because of the type of bigotry it implicates and the harm it encapsulates.
At last we come to the fork. If hate crime enhancements are defined by "discriminatory selection," they are unjust because of the overinclusive nature of the definition, which would violate a retributive conception of justice (i.e., someone would be punished without merit). See more here.

If they are defined by the "racial animus," then they are unjust according to the 1st Amendment argument found in Wisconsin v. Mitchell, which, paradoxically, legitimized a broader statute.

The affirmative's task, then, is to choose one definition to go after, and shape their argument accordingly.

Added: I almost forgot a third tine to the fork. If different states use different definitions, which they might, even post-Mitchell, then the enhancements could be unjust because they are disproportionate across states, in violation of the 14th amendment. Seems worthy of research.


Anonymous said...

What about using Kant's Categorical Imperitive?

1: Hate crime enhancements are not enforced universally.

2: Hate crime enhancements treat people as a means to an end because they aim to make examples out of people so that others won't want to harm a person because of race, etc.

Jim Anderson said...

Kant's own words on this are instructive.

Juridical Punishment can never be administered merely as a means for promoting another Good either with regard to the Criminal himself or to Civil Society, but must in all cases be imposed only because the individual on whom it is inflicted has committed a Crime. For one man ought never to be dealt with merely as a means subservient to the purpose of another, nor be mixed up with the subjects of Real Right. Against such treatment his Inborn Personality has a Right to protect him, even although he may be condemned to lose his Civil Personality. He must first be found guilty and punishable, before there can be any thought of drawing from his Punishment any benefit for himself or his fellow-citizens. The Penal Law is a Categorical Imperative; and woe to him who creeps through the serpent-windings of Utilitarianism to discover some advantage that may discharge him from the Justice of Punishment, or even from the due measure of it, according to the Pharisaic maxim: ‘It is better that one man should die than that the whole people should perish.’ For if Justice and Righteousness perish, human life would no longer have any value in the world.

Of course, a Negative will respond that a hate crime is a worse crime, and that even in a Kantian retributivist framework, deserves greater punishment, not because of example-setting, but because of the greater moral wrong. Kant himself notes that crimes are not just violations against individuals, but against the community:

Coining false money or forging Bills of Exchange, Theft, Robbery, etc., are Public Crimes, because the Commonwealth, and not merely some particular individual, is endangered thereby. Such Crimes may be divided into those of a base character (indolis abjectæ) and those of a violent character (indolis violentiæ).

LD n00b said...

it may take a bit of statistic digging, but if you can look up the amount of members of hate groups in the US and the amount of people who die from hate crimes each year, and do the same with drug dealers, and make a ratio out of each of them, and show that one drug dealers are more dangerous to society than hate criminals but are punished less respectivly, you could have a good aff case.
Or, too put it like this:

KBD=killed by drugs
KBHC=killed by hate crimes
DD=Drug Dealers
HGM=Hate group members
DJ=average time in jail on a drug charge
HCJ=average time in jail on a hate crime


KBD/DD=lethality to society per drug dealer

KBHC/HGM=lethality to society per hate group member

than (KBD/DD)/(KBHC/HGM)= ratio of lethality to society of drug dealers relative to hate group members


DJ/HCJ=ratio of severity of punishment of drug dealer over severity of punishment of hate criminal

then the two should be about equal if we are punishing based on danger to society

but if (KBD/DD)/(KBHC/HGM)is less than (DJ/HCJ) (as I suspect it is)

then hate crimes are being punished more severely relative to thier harm to society.

which would be unjust under utilitarianism.

did that make any sence or am I crazy? (I know I left out lives injured, but not ended, by either one, but since so many more lives are ruined by drugs than by non-lethal hate crimes it wouldn't be an effective counter-argument for a neg to use anyway.)

Anonymous said...

"At last we come to the fork. If hate crime enhancements are defined by "discriminatory selection," they are unjust because of the overinclusive nature of the definition, which would violate a retributive conception of justice (i.e., someone would be punished without merit)."

Im centering my aff around distributive justice, so would hate crime in the definition of discriminatory selecetion violate distributive justice as well?

Jim Anderson said...

I'll be posting a Rawlsian argument very soon. Suffice it to say that Rawls himself never really extended his social contract analysis into a full theory of punishment, but another has taken up the slack.

le radical galoisien said...

I don't quite get this third fork. States also have differing standards for abortion (Roe v. Wade did cite the 14th amendment as well), but this doesn't render their differing standards unconstitutional/unjust.

What is unconstitutional is not necessarily unjust, either. While you might probably not want to concede something as unconstitutional, if your opponent's main attack is based on unconstitutionality, you could probably endure such an attack by pointing out examples in the past (or even in the present) where the constitution has been unjust [from Prohibition to the requirement that Presidents be native-born].

Alas, I don't even get to debate this resolution -- the debate season is over for my state. And I don't even get to go to the nationals, cuz my school isn't an NFL school. Still since I plan to continue in college next year, it'd probably be wise to keep sharp somehow (web conferencing?).

Anonymous said...

One question hopefully you can answer,

How can this definition ever win a definition debate? It's obviously leaning to the side of the affirmative, making it possibly abusive, as well as its very hard to say any definition would be better to use than the US sentencing guideline one you posted earlier which is more relevant and isn't nearly as one sided.

Jim Anderson said...

anonymous, the definitions don't lean either way--they are what they are because that's how the laws have been drafted from state to state. (See also here.)

The arguments based on either definition are both defeasible, so they're not abusive, either.

Anonymous said...

Can we just absorb this knowledge and write a definition of hce based on what we derived or do we have to have an "actual," sourced definition?

le radical galoisien said...

Definitions need not a source per se -- they just stand better in value clash / definition wars when sourced.

In my (short) experience, personally-argued definitions tend to win me more cases -- the so-called source should support your definition (as opposed to *being* your definition).

If you are Neg, you will need to synthesise a principle based out of these different laws, and relying on one particular "source" as your definition will be crippling IMO. You will be trying to forge a common principle, and you will nee to show how your one personal definition is reflected through a wide variety of laws. You could even argue that some unjust HCE practices are not the fault of HCE per se, just like North Korea's execution of political dissent is not necessarily evidence of the flaw of the death penalty.

I think it's better that they be "supports"? I have always preferred giving a personal definition, then following with something like, "my definition is supported by a wide range of legal authorities" (whereupon you quote the appropriate philosophers, laws, etc.) Of course, this is just my bias -- reciting a definition that's not yours always seemed less convincing to me.

Anonymous said...

In terms of the fork, I am thinking that it would be wise to consider the model statute proposed by Gellman and Lawnrence. "A. The penalty for any criminal offense may, at the discretion of the court, be increased by no more than the lesser of [number of years] or [fraction of the penalty applicable to base offense], where any of the following applies and has been proven beyond a reasonable doubt:

(1) the offender acted with the purpose to create terror in a definable community,

(2) the offender acted with the knowledge that he was likely to create a perception of a threat, to the victim or to others, of commission of further crime, by himself or others, against members of a definable community,

(3) the offender acted with the purpose to inflict or with the knowledge that he was likely to inflict serious emotional distress on the victim due to the victim's membership in or relationship to a defin-able community, or

(4) The offender acted with intent to interfere with another's

a. exercise of constitutional or statutory rights, or

b. enjoyment of or access to public facilities, or

c. enjoyment of or access to equal opportunity

based on the offender's belief as to the victim's membership in or relationship to a definable community.

B. For the purposes of this section,

(1) "terror" means fear of immediate or future serious harm where the victim or others experience that fear because of the victim's real or perceived membership in or relationship to a definable community;

(2) "definable community" includes, but is not limited to, any group defined by, identified by, or having in common race, color, national origin, religion, ethnicity, sexual orientation, or sex"

Jim Anderson said...

anonymous, the only problem: the "model statute" is that--a model. The real laws are much less specific, unfortunately. An affirmative can--and should--argue that the resolution forces us to consider real laws in the present day, since it's set in the present tense and "in the United States."

le radical galoisien said...

I've never really understood the retributivist POV (which seems a core value for Neg). I suppose it's really hard to make a case for pure retributivist justice (as opposed to utilitarian justice) from social contract theory, so I suppose it's the framework I'm using.

Anyway, I suppose Neg could argue that HCE is a needed innovation for justice (sort of like international justice), given rising forces of globalisation, and that all the finer things haven't been worked out yet; Neg always has the card of, "That is not a flaw with [HCE], but in how it was executed," and I have often found that as Neg (for any resolution, save nukes since we've really had only one sob story) it's esay to dismiss sob story cases (So-and-so was an average citizen, when one day...) as faults in execution of the principle, as opposed to the principle itself.

At the risk of sounding a little like Policy (and a bit unusual since Neg often represents the status quo) Neg can argue that although HCE needs polishing, there is a problem that needs solvency(!). The principle behind it is sound, and has only come up recently because of globalisation.

I suppose this is the way I would go about it -- in order to make HCE fit with my social contract framework of justice as Neg I can't see not making some innovations in HCE jurisprudence.

Jim Anderson said...

Retribution, from what I understand, answers two fundamental questions:

1. What gives the state not only the right, but the duty to punish?

2. What is the ceiling and floor for any particular punishment?

Most retributive schemes are essentially Kantian, grounding punishment in a strong view of dignity and capital-r Reason. Hence the word "duty" above.

At very least, why we don't punish the innocent is a retributivist concern, and, for some utilitarian theories, a constraint that sneaks in retributivism through the side door.