Abstract
This chapter reaches the following conclusions about laws that enhance punishment for criminal conduct prompted by group hatred or bias:
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Hatred (as opposed to bias) should not be either a necessary or a sufficient condition for enhanced punishment.
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Enhanced punishment is justifiable when bias crimes display greater culpability, express disrespect for the victim’s group, or cause either greater psychic harm to the victim or group-specific outrage in the victim’s community.
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Properly designed bias crime laws do not improperly punish for thoughts or character.
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Such laws are more defensible if they require that the actor’s primary motive was animus toward the disfavored group.
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There is no principled reason to require that such laws merely enhance punishment for an already existing parallel crime.
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Increasing punishment significantly because of bias may violate principles of proportionality.
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Notes
- 1.
To be sure, a small number of mitigated murders also do qualify as “hate crimes” in the sense of crimes motivated by bias. See State v. Castagna.
- 2.
- 3.
A similar range of examples can be found in Tribe (1993).
- 4.
A similar notion of selective sympathy or indifference has been endorsed as justifying strict scrutiny for equal protection purposes (Brest 1976, pp. 7–8). But compare Baron (2016, p. 506) (concluding that it would not be a hate crime for a thief to intentionally choose Jews as victims of burglaries, not because he hates Jews, but because he likes them less than the others whom he could victimize).
- 5.
At the same time, many racists and homophobes might sincerely claim to “care” a great deal about African-Americans and gays, based on outrageous stereotypes that assume the intellectual incompetence or moral failings of these groups. Some supporters of slavery asserted benevolent motivations for the practice. To be sure, the credibility of such a claim is dubious if the actor has engaged in an act of violence against a member of the group. How does punching someone in the face demonstrate genuine concern for his welfare? But suppose the actor engaged in a different type of criminal wrong, such as locking the victim in a workplace until the end of the workday out of a misguided, paternalistic belief that the victim is a member of a group that cannot be trusted to return to work after a lunch break. In such a case, the actor’s claim that he acted out of a paternalistic and benevolent motive might occasionally be credible. Needless to say, the sincerity of such a motive or belief does not make it justifiable.
- 6.
To be sure, victim impact statements about the effect of a bias crime on the victim’s group are one way to provide more individualized case-specific evidence (cf. Hurd and Moore 2004, p. 1091). But such statements create serious problems of their own, such as inconsistency, undue weight accorded to especially articulate victims, and undue favoritism toward more wealthy defendants. These problems are less likely to plague group-based criteria for sentencing enhancement.
- 7.
See Brax (2016, p. 240): “We can choose whether or not to treat a reason as a reason.”
The lack of control argument might, however, provide some support for the argument that bias “motive” should be required and that culpable indifference should be insufficient. See discussion infra. The argument also might be relevant to which causal test of motive should be adopted.
- 8.
See Hurd and Moore (2004, pp. 1122–1123), arguing that hatred “motivates” action only in the limited sense that the action is a product of that emotion, and bias “motivates” action only in the limited sense that bias is a standing disposition to draw false beliefs about members of a group.
- 9.
Similarly, most of those who act out of anger do not act for the purpose of expressing their anger. Contrast the (unusual!) actor who makes a deliberate decision to react in anger, heeding his therapist’s advice that expressing anger will benefit his mental health (see Simons 2002, pp. 244–245).
An analogous issue arises with mitigating motives. As a doctrinal matter, self-defense requires that the actor’s forcible response to a threat was (at least partially) for the purpose of defending herself. But in many self-defense cases that should result in acquittal, such a purpose is lacking. If D lashes out in fear in response to an unjustified attack, but not with a conscious purpose to prevent further harm to herself, and if D’s conduct satisfies the objective necessity and proportionality requirements of self-defense, the absence of a defensive purpose should not be, and probably is not, fatal to her self-defense claim (see Simons 2008).
- 10.
- 11.
- 12.
- 13.
See Hurd and Moore (2004, pp. 1114–1115), arguing that the mere enactment of bias crime laws may send a strong message, while the imposition of actual punishment on actors who do not get the message “is rank injustice” if the punishment exceeds their just deserts.
- 14.
For a similar analysis of felony murder, see Simons (2012).
- 15.
See U.S. Sentencing Guidelines Manual § 3A1.1 (b)(1) & cmt. n. 2 (2016) (authorizing increased punishment by two levels if defendant knew or should have known that a victim of the offense was a vulnerable victim, defined as “a person … who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct”).
- 16.
Addressing the constitutional question, the U.S. Supreme Court invalidated a cross-burning statute in R.A.V. v. City of St. Paul as a violation of the First Amendment because the law selectively silenced speech based on its content, but in Wisconsin v. Mitchell, the Court upheld a very broad bias crime statute that enhanced defendant’s punishment based on his discriminatory selection of a victim on the basis of race. In Virginia v. Black, the Court upheld a cross-burning statute that, unlike the law in R.A.V., applied to all cross burnings that are intended to intimidate, without regard to the race or ethnicity of the victim.
- 17.
Gabriel Mendlow identifies an additional, implicit criminal law requirement, beyond concurrence of actus reus and mens rea, that he believes bias crime laws might not satisfy—the requirement that the state may not treat a person’s thoughts as objects of punishment, even if those thoughts are realized in his conduct (see Mendlow 2019).
- 18.
More precisely, bias crime laws permit enhancement of punishment by a specified amount, while factors such as sadism or greed are more likely to be discretionary, aggravating factors that a judge may or may not consider when sentencing the defendant within the range otherwise specified for the crime.
- 19.
These are the most common “protected” categories that trigger potential punishment for a hate crime. See https://www.adl.org/adl-hate-crime-map. The District of Columbia includes a broad list of categories: “race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibility, homelessness, physical disability, matriculation, or political affiliation.” D.C. Code § 22-3701(1) (2018). Belgium’s list of protected categories is also extensive:
race, color of skin, descent, national or ethnic origin, nationality, sex, sexual orientation, marital status, birth, age, wealth, belief or philosophy of life, current and future state of health, disability, language, political conviction, or physical or genetic characteristic or social origin.
(Articles 33–42 of Belgium’s Law of 10 May 2007, from OSCE Report, p. 35)
- 20.
See Baron (2016, p. 521), expressing concern about extending bias crime laws to groups that are not especially vulnerable to oppression.
- 21.
U.S. v. Miller; U.S. v. Mullet. An analogous issue arises when one Latino prison gang targets a different Latino gang.
- 22.
See Lawrence (1994, 1999); Grattet and Jenness (2001) (describing different phraseology in hate crime laws, including (a) requirement of animus or hatred; (b) requirement that actor had intent to harass and intimidate victim on the basis of a specified group status; and (c) requirement merely that actor committed offense because of a specified group status).
- 23.
“Normally,” but perhaps not always, depending on what other criteria are part of each model. Suppose the discriminatory selection model requires that the selection criterion was a necessary cause of the actor’s criminal conduct, while the animus model only requires that animus was a sufficient cause. Then it would sometimes be easier to establish animus than to establish discriminatory selection.
- 24.
- 25.
For a similar view, see Duff and Marshall (2018, p. 145), arguing that the key question is not whether the offender was motivated by bias, but whether the perpetrator demonstrated and “enacted” group hatred “in the very commission of the offense.” In their view:
I can enact hatred of another group in an attack on one of its members, even if what motivates me is just a desire to earn the money l have been promised, or to curry favor with a group to which I want to belong, and I feel uncomfortable about what I “have to” do. To criminalize enactments of hatred is to criminalize actions that carry a certain meaning, not to criminalize thoughts, feelings, or motives that lie behind the action. (Duff and Marshall 2018, p. 139)
- 26.
On one (referentially transparent) description, the quoted proposition is true even if B did not know that the victim was Muslim, so long as he intended to steal from a person he identified on some other basis and it turns out that the person was a Muslim. On another (referentially opaque) description, the proposition is true only if V2’s status as a Muslim was part of the reason that B victimized him. See Schwitzgebel 2015); Ferzan (2008) (rejecting the view that the characterization of an intention is just a matter of what is motivationally significant to the actor).
- 27.
Defacing a house of worship is a similar case except that the persons harmed are not individualized.
- 28.
See U.S. v. Miller (concluding that a faith-inspired manner of assault does not necessarily prove a faith-inspired motive for assault). One of the court’s examples is highly instructive:
[I]magine that a child tells his parents he is gay. As a result of their faith, the parents ask the child to undergo reparative therapy. The child resists, the parents dig in, all three fight verbally about everything from faith to family obligations. At some point, the child snaps. He assaults the parents and does so in a faith-offensive way—by physically forcing them to eat non-kosher food, by tattooing 666 on their arms or by taking some other action that deeply offends their faith. No doubt faith entered the mix from both sides of the assault, but there is doubt about whether the parents’ faith broke the camel’s back in terms of why the child committed the assault. That the means of assault involved religious symbolism confirms only that he knew how best to hurt his parents. It does not seal the deal that his parents’ faith, as opposed to their lack of support for him, was a but-for motive of the assault. (ibid., p. 596)
- 29.
See State v.Hennings (upholding bias crime charge against a defendant whose motive for running over an African-American boy with his truck might have included not only the victim’s race but also anger that the victim was standing in the road rather than on the sidewalk).
- 30.
Some state statutes require only that the victim be chosen “in whole or in substantial part” because of the group characteristic. See N.Y. Penal L. § 485.05(1)(a), (b) (2016).
- 31.
The analogous “substantial factor” test in tort law employed by many courts was firmly rejected in the Restatement of Torts, Third. See Restatement Third of Torts: Liability for Physical and Emotional Harm § 26, comment j (2010). Interestingly enough, a recent empirical survey found that the “substantial factor” test did a better job than the “but for” test and other legal tests in capturing survey participants’ views about the meaning of legal causation (especially in overdetermination cases involving independent sufficient causes) (see Macleod 2019). However, the survey did not examine whether a test that explicitly imposed liability on sufficient but not necessary causes would perform even better.
- 32.
See U.S. v. Miller (p. 592).
- 33.
- 34.
One recent article explores ordinary understandings of legal causation standards (including causation in the context of bias crimes). The author’s conclusions are broadly consistent with my suggested resolution:
[T]he “substantial factor” standard for causation comes much closer to tracking common sense and statutory causality attribution than does the “but-for” test, the “contributing factor” test, or the “sole factor” test, and the sufficiency of the relevant “cause” is far more predictive of causality attribution (and blameworthiness assessments) than the Court’s “but-for” standard. (Macleod 2019, p. 962)
- 35.
Federal hate crime laws do create federal crimes out of conduct that would not be a federal crime but for a prohibited bias motive (seehttps://www.justice.gov/crt/hate-crime-laws).
- 36.
For other examples of the degree of punishment enhancement that bias crime laws permit or require, see Simons (2000, p. 266 n. 67). For example, Alabama increases the punishment for a Class B felony from a minimum of two years to a minimum of ten years if the crime is motivated by bias. AL Code § 13A-5-6, § 13A-5-13 (c)(1)(b) (2016).
- 37.
See Walen (2016, § 4.4) (discussing ordinal and cardinal proportionality).
- 38.
The Federal Bureau of Investigation announced a 17% increase in reported hate crimes in 2017 as compared to 2016 (Hohmann 2018). Moreover, “[a]ccording to the Center for the Study of Hate and Extremism, there were a total of 1,038 hate crimes recorded in the 10 largest American cities last year, an increase of 12 percent from 2016 and the highest figure in more than a decade” (Fausset 2018).
- 39.
I thank Kim Ferzan, Jeff Helmreich, Val Jenness, Jamie Macleod, Gabe Mendlow, and participants in the Law, Reason, and Value Colloquium of the Center for Legal Philosophy, UC Irvine, for helpful comments.
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Simons, K.W. (2019). Hate (or Bias) Crime Laws. In: Alexander, L., Kessler Ferzan, K. (eds) The Palgrave Handbook of Applied Ethics and the Criminal Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-22811-8_13
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