First up: Safety Valve theory, in which criminal justice provides an outlet for social tensions caused by injustice.
Nowhere is this release of societal pressure more important than in cases where divisions within society have led to bias crimes. The stakes are raised so dramatically with hate crimes because, to the extent that members of the target group identify with the victim, each is personally slighted by the crime and thus has much more than an impartial interest in seeing justice done. Thus, whereas only an individual and perhaps her friends and family will be personally invested in an average criminal's penalty, an entire marked group will typically yearn for a hate criminal to receive her just desert.I see this as the weakest potential reason for supporting stiffer penalties, which is likely why Wellman addresses it first.
Second, Restitution, a form of justice in which the primary goal is for the perpetrator to "make things right" for the victim and the community. ("Restorative justice" is a synonym.)
I suggest that hate crimes require enhanced penalties because, more than other transgressions, hate crimes claim vicarious victims.... Without diminishing the fact that the primary victim is often devastated as no one else could be, I want to stress that others are importantly, if vicariously, made victims because of their identification with the victim and the effect this identification has upon their sense of belonging, and even security, in society....The Affirmative would have to show why extra punishment in any way "restores" the situation; it is unclear why or how a 20-year versus a 10-year sentence would dull the pain or relieve the degradation suffered by victims--since many views of restoration require some sort of forgiveness on the part of the offender (and in some views, the victims).
Thus, even without asserting that hate crimes are especially damaging to their primary victims, one can cite the real losses of secondary victims to explain why the restoration made necessary by hate crimes is more substantial than that by ordinary crimes. Put simply, hate crimes leave so much pain and degradation in their wake that, in order to restore both the primary and secondary victims, society must employ extraordinary measures to affirm all those who have been degraded. In such circumstances, ordinary criminal censure will not do.
The Expressivist view of justice comes next: that the purpose of the justice system is to "send a message" to the criminal, and society, that crime is wrong.
As indicated above, a hate crime can serve as a poignant announcement to all members of the targeted group that they are despised, hunted, and vulnerable. Indeed, part of what attracts hate criminals to these horrific acts is the opportunity to express contempt, not just for the particular victim, but for the entire group to which the victim belongs. Unfortunately, this expression is all too often received loud and clear. Proponents of the expressivist theory of punishment are in a position to recognize that hate crimes send these messages and suggest that the criminal law can be used to counter this message.... Given that the criminal law is an important expression of a society's values, it follows that we should want more severe penalties for those crimes that we deem to be more serious.This is similar in import to the "Moral Education" view of justice, in which justice is meant to educate society in matters of right and wrong.
Since chauvinism and xenophobia are some of the most personally and socially destructive moral vices undermining contemporary society, there are compelling reasons to harness the criminal law's power to shape the general public's values in the campaign against group hatred. In sum, both because hate criminals have revealed themselves to be particularly in need of moral education, and because our criminal code is an educative instrument for society at large, moral education theorists have reason to lobby for enhanced penalties for hate crimes.Wellman covers the Utilitarian view fifth, which encompasses some of the previous considerations (such as moral education, which has societal benefits). A utilitarian view of justice, as I've mentioned before, is forward-looking, and is mostly concerned with the costs and benefits of punishment to society as a whole. (For LD, utility as a criterion often links to a value of societal welfare.) Why does utilitarianism justify hate crime enhancements?
In short, as the cost of a crime rises, a utilitarian will be more concerned to deter it and will therefore want a more severe punishment. Since hate crimes cause profound social division and unrest, as well as create more pain for a greater number of victims, they are extremely costly. Thus, although a utilitarian might invoke any number of considerations to defend stiffer penalties for hate crimes, one basic and distinctively consequential line of reasoning stands out: the magnified harmfulness of hate crimes gives us reason to attach more severe penalties to those found guilty of committing them.Last, Wellman tackles the retributivist view, which requires the most complex argumentation. He sees two major ways hate crimes might be more reprehensible--if they are inherently worse either in action ("actus reus") or intent ("mens rea"), thus justifying stricter punishment.
The explanation as to why the actus reus in a hate crime is particularly bad is straightforward. As outlined above, bias crimes are especially harmful because of the vicarious victims they claim and the psychological distress and social unrest they leave in their wake. And, just as a person who steals one thousand dollars commits a worse act (other things being equal) than someone who steals one hundred, the additional harms involved in bias crimes make the acts worse than they would be otherwise. Clearly, then, proponents of retributivism need cite only the magnified badness of the act in a hate crime to show why bias criminals are especially culpable and thus deserve to be punished more.Wellman sees this as sufficient to establish the retributivist case, but also covers the other angle. However, this is where he finds himself on weaker ground, considering murder-for-prejudice worse than murder-for-hire as "self-evident" to most people. This is hardly intuitive; someone who is so devious and sociopathic as to kill a stranger for money might be an even less moral than someone who chooses only a specific class of victim. Wellman has an answer, though, considering Ally the hired gun, and Barry the racist killer.
[W]e are liable to lament Barry's act as particularly pointless. As depraved as Ally is for valuing $10,000 more than a person's life, Barry is worse because he regards the act of killing not as a means to some other end, but as an end in itself. He kills simply to indulge his irrational hatred, merely for the satisfaction of killing a Jewish person. Thus, without minimizing our disgust for Ally, there is plenty of room to regard Barry's state of mind as more vicious than Ally's. And, because retributivists assign punishments in accordance with the moral depravity of the criminal, Barry's more reprehensible state of mind explains why he deserves to be punished more strenuously than Ally.Wellman does not explain why the pleasure Barry acquires from killing is morally worse than the pleasure obtainable from Ally's $10,000 (which, in putting a specific dollar value on a life, could be described as equally as dehumanizing, if not moreso). In fact, Ally's motives are assumed to be "pure," in the sense that her desire for cash is purportedly all that drives her. Potentially, Ally is every bit as psychopathic as Barry, and is simply happy to find someone who will subsidize her psychopathy.
Wellman could strengthen his argument by simply equating the two situations, and saying that each deserves a stiffer punishment. Murder for no apparent reason would be the test case.
At any rate, a Negative can choose any (or some) of the views of justice listed above in order to show that hate crime enhancements are just. Affirmatives should, of course, prepare counterarguments.
As always, your comments and questions are welcome.