Feb 18, 2008

why hate crime enhancements are just: six reasons

Christopher Heath Wellman, in "A Defense of Stiffer Penalties for Hate Crimes," found in the Spring 2006 edition of Hypatia, helpfully outlines six (6!) potential criteria for determining the proper scope and aim of justice. Each one, according to his reckoning, justifies hate crime enhancements, the focus of the March / April resolution. Let's see how.

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....

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 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).

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.


Rona said...

A helpful tip to other debaters,
Christopher Heath Wellman is the Associate Professor of Philosophy. Washington University in St. Louis. Education.

I'm using the article too, so I looked him up, just something to make the source look good. =)

Anonymous said...

I don't quite understand how utilitarianism would justify the use of HCE's. It seems that utilitarianism and justice are two separate concepts.

Jim Anderson said...

anonymous, if justice concerns right conduct (or morality), and if morality should be determined in a utilitarian framework, and if the purpose of the justice system is to promote utilitarian aims, then the resolution is all about utilitarianism.

Koreena said...

Hey Jim,
Do you think i could possibly bring in the argument that HCE= less crime.

i cant even hardly develop that argument as of right now...

but i guess what im trying to say is that, there would be less hate crimes committed for fear of harsher punishment?
(easily blocked, though)

LD n00b said...

Could the SC be effectivly applied to this argument? It seems like in most resolutions it can support (at least) one side.

Jim Anderson said...

Koreena, you can make a plausible argument, but only if your view of justice allows it. If you're a solid retributivist, for example, the deterrent power of the law isn't under moral consideration, only redressing the wrong.

ld n00b, of course it can. Depends on which version, and I'm not sure if it favors either side. Also, the US has its own codified social contract called the Constitution, which might outweigh any theoretical conception.

Anonymous said...

I want to take the retributivist route but I am having difficulty in thinking of a response to a question that is almost guarenteed to show up in the CX:

Using your theory, lets say a man killed 10 people. How should he be punished by your stance on retributivism?

I am banging my head on a wall for that answer. If you could some how help me out I would GREATLY appreciate it.

btw, nice blog. Very very helpful and interesting.

Jim Anderson said...

anonymous, that's worthy of a post of its own. Suffice it to say that there are two ways around the problem. I'll write about them later tonight.

le radical galoisien said...

Ethical/judicial "calculus" is an interesting thing -- that is, analysing why a sequence of actions becomes unjust when the sum of the parts isn't (or is less unjust). I'd wish I could get some external analysis on this -- maybe it's been called something I have been unaware of.

Anyhow, one of the key ideas behind why hate crime enhancements may be argued as unjust is that by itself, having racist thoughts and hatred isn't a crime. By itself, robbery is just plain robbery. For something that individually gets you 0 years (simply being racist isn't a crime in the US anyway, which I suppose might be related to the nationalised scope of the resolution), and 2 years (for robbery) -- put those together and suddenly you get 10 years. This seems inherently unjust.

But usually this is because there are "hidden effects" somewhere, that aren't significant individually [marginal detriment] but become significant as a collective.

In the example of price-fixing, the individual act of raising a price of a product is not unjust. Yet when it is done collectively in collusion, it becomes unjust. The added injustice is because the fixing conspiracy reduces the independence of the market, which the system relies upon. I used this too for the plea bargaining argument (seems ancient now) -- normally, individuals have a right to plead guilty as they wish, and prosecutors have a right to drop cases as they wish, but collusion is unjust because the adversarial system depends on the independence of the two factions.

So what is the hidden effect for hate crimes? We could go one rung lower in gravity and look at laws against discrimination in the private sector -- discrimination in hiring practices, rent, etc. In this case, normally employers or landlords have the free market right to hire, fire, rent to or evict anyone they want [as long as it doesn't violate contract, of course]. Why then is it unjust to fire or evict based on bias motivation?

A preliminary analysis could argue that there is a marginal externality involved [and hence a justification for social intervention] behind every act of hiring or renting, that becomes amplified when taken together as a collective, creating the aforementioned hostile environments.

Often these will become collective only because of some salient feature. I may decide to fire my secretary because she has freckles, and gosh, I hate freckled people. [For the sake of argument, of course.] But not a lot of people do -- not even a significant minority -- not enough that collective discrimination becomes a sufficient problem to create a significant externality. No one is going to bring me to court alleging that her firing was discriminatory, because discrimination against freckled people isn't a significant problem, as far as I am aware.

You can then extend this analysis to hate crimes. If I kill someone because she was freckled, (maybe I was abused by a freckled babysitter as a child), I doubt I would have hate crimes charges filed against me, even though it *was* arguably a hate crime. This is because collective hatred against freckled people isn't significant enough that such an action would cause additional injustice (on top of normal murder). Freckled people aren't going to fear for their lives, or be particularly anxious

Of course, I am unsure of how to tie this in to a constructive, or even any sort of in-debate analysis, especially since I'm not debating this resolution. But the idea of a series of actions not being unjust individually but unjust when taken as a whole is something that has been bothering me.

I am trying to figure out how to tackle incentive and disincentive, though.

It may be just to increase the penalty for a hate crime if the hate element provides additional harm -- creating a hostile environment for the target group -- but what if the bias motivation didn't provide much additional harm, but only an incentive? It seems to fulfill utility (accomplishing deterrence), but if the harm (as well as redeemability of the criminal) is the same, [mitigating circumstances], but the motivations were different, I am still rather troubled at sorting out how it can be just to give different punishments.

Jim Anderson said...

Here's a potential counterexample to your "having racist thoughts" argument.

Having murderous thoughts isn't a crime, either. But acting on them is. And a killing that is deemed to have been premeditated (or, in other words, thought about previously, and murderously) comes with a sentence that is enhanced relative to an unintentional, or even a heat-of-passion spur-of-the-moment, killing.

Is that similarly unjust?

le radical galoisien said...

But that's not so much the intention in itself -- more of culpability. (Perhaps "intention" is unclear). A better analogy would be for example, would be a motive behind the murder, rather than whether the homocide was premeditated. Again, generally then, we only change the sentence on motive based on the idea (or so we can argue based on a social utility idea of justice) of utility. For example, a 10-year-old boy who is caught shoplifting and a 30 year old man caught for the same crime would receive different sentences based on the idea that a juvenile has more "redeemability".

I suppose you could debate not only whether hate crime enhancements are just but whether enhancements are just in general -- one can mitigate based on the idea of mercy and utility, but is it ever just to increase a punishment for the same harm committed?

And I would also dispute the idea that murder is the enhanced version of manslaughter...

Jim Anderson said...

Consider USSG, for instance. The baseline is homicide; first degree murder's at the top of that listing. Why isn't a 1st degree murder charge an enhancement? (Especially if you can have a 2nd degree charge enhanced for conduct "exceptionally heinous, cruel, brutal, or degrading to the victim.")

le radical galoisien said...

Isn't the harm increased when the murder is particularly heinous? My argument is "same harm, different motive ...".

Also, I read, "If the defendant did not cause the death intentionally or knowingly, a downward departure may be warranted."

Which makes me think that the other charges are downgrades, as opposed to first degree murder.

An upward departure can be justly assigned in grisly crimes, because the harm committed is obviously more.

But is it just to give an upward departure if the harm is the same, but the motive is different?

If a busted a cap on a millionaire -- the harm is the same, thereabout -- does it matter (ignoring mitigating circumstances, which I argue are of a downward nature and therefore different) whether I wanted to invest in a recent Mafia cocaine offer, wanted to re-enact Marquis de Sade's 20 days of Sodom (obligatory disclaimer: not that I endorse such acts), etc.?

There are times when the harm (e.g. creation of a hostile environment for the target group) could be different due to intention, and I am willing to accept a neg argument based on that.

Yet, in most cases of clearly just "upward departures" I have come across seem to be of the type where the harm was in fact increased.

Jim Anderson said...

I agree that brutal or degrading crimes have a greater harm--but they also come from a different mindset. What I'm testing, as a principle, is whether we can ever really separate actus reus from mens rea when assigning blame.

What's the difference in harm between voluntary manslaughter and second-degree murder? The only significant distinction I can see is the defendant's state of mind. The lack of "malice."

le radical galoisien said...

But that is more of culpability again, isn't it?

I suppose it may boil down to the idea of whether the fact that a murder was a hate crime makes the criminal more culpable?

I would argue for example, that normally we assume a person is culpable for the crime (when the fact of the killing has been established, of course), then we apply mitigating circumstances to it, and maybe "upward departures" due to greater harm. A person less culpable is given a lighter sentence because that person is seen as having a greater chance for rehabilitation and social utility.

Firstly, I would contend that penalty enhancements are only just when greater harm has been committed.

Secondly, I would argue that penalty reductions are quite different from penalty enhancements; thus the criteria for penalty enhancements are much stricter. I would argue that manslaughter, etc. is an example of a penalty reduction due to decreased culpability.

Thirdly I argue that having a racist motive does not increase culpability after the standard murder mens rea has been established. We can clearly evaluate that a doctor who recklessly endangered his patient's lives has less culpability and malice than this doctor, for example.

But if we were to argue that racist motives increase culpability (and I question whether culpability can be increased above the standard crime -- only decreased), then this is potentially very problematic, because we get into subjective arguments like, "who is more culpable? The guy who kills to fulfill his own depraved desires, or the neo-Nazi bigot?" [Assuming they committed crimes of similar harm and modus operandi].

Of course, any serial killers caught often receive upward departures because they tend to be the grisly sort (at least as Hollywood tells us), but if someone killed Ralph Nader, does it make the perp more culpable whether he hated Green Party members, versus "he's threatening my corporation's ability to dump its toxic waste wherever I want and it'd be convenient if he died?"

There are definition problems too, aren't there?

If a serial killer has a sexual fetish for small, petite red-haired women (or just for a change, men) and chooses his victims based on this criterion, can you give him/her penalty enhancements arguing he has committed hate crimes against women (or red-haired Celt-looking men?) What does it mean to "intentionally select?"

Jim Anderson said...

le radical, even the social utility argument raises problems. Are bigots more or less rehabilitatable? Are bigots more or less dangerous? Do we start treading on slippery empirical ground?

I'm starting to like this resolution even more than its close cousin, plea bargaining.

Jesus Robles said...

where did you find the article? =)

Anonymous said...

what sides could you use these for? aff [to prove hate crime enhancements are unjust] or neg [to prove hce are just]?