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.