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0001007312
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Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws
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Ms. Gellman presented a version of her essay at a colloquium at the Arizona State UniversityCollege of Law in 1991, and I functioned as one of her commentators. The present essay, concerned solely with her views on motives in criminal law and not with the many first amendment issues she raises, is essentially a transcript of those comments and preserves the informal style of the original. A proper philosophical discussion of motives would, of course, require much more space and the drawing of many more distinctions than this brief comment allows. My purpose here is mainly to play a gadfly role—to show that the cliche “motives are irrelevant to criminal liability” is not as clear as Ms. Gellman seems to think. It is perhaps not a bad slogan to help open debate on some of the issues involved in hate crimes; but, since there are important senses in which the slogan simply is not true, it should by no means be allowed to close debate.
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Susan. Gellman, Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 Ucla L. Rev. 333 (1991). Ms. Gellman presented a version of her essay at a colloquium at the Arizona State UniversityCollege of Law in 1991, and I functioned as one of her commentators. The present essay, concerned solely with her views on motives in criminal law and not with the many first amendment issues she raises, is essentially a transcript of those comments and preserves the informal style of the original. A proper philosophical discussion of motives would, of course, require much more space and the drawing of many more distinctions than this brief comment allows. My purpose here is mainly to play a gadfly role—to show that the cliche “motives are irrelevant to criminal liability” is not as clear as Ms. Gellman seems to think. It is perhaps not a bad slogan to help open debate on some of the issues involved in hate crimes; but, since there are important senses in which the slogan simply is not true, it should by no means be allowed to close debate.
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(1991)
Ucla L. Rev
, vol.39
, pp. 333
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Gellman, S.1
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84055208984
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147 Cal. App. 3d 1006, 195 Cal. Rptr. 484
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Barber v. Superior Court, 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983).
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(1983)
Barber v. Superior Court
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4
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84920477884
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Character, Choice and Moral Agency
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For a discussion of the role of character in just criminal liability, see Arenella’s, E.F. Paul et al., An obvious point (often missed) is this:Just because character is relevant to criminal liability, it does not follow that this is the same as punishing for thoughts alone or character alone. The law is interested in character-as-revealed-in-actions, not in those aspects of one’s character that one manages to keep under control and never reveal in behavior. That the law will punish you for revealing your hateful disposition in hateful actions still allows you to stew in your own private hatreds all you want. I think this distinction is nicely respected in the common linguistic tendency to refer to general passions and dispositions of character as motives only when they enter into the explanation of behavior.
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For a discussion of the role of character in just criminal liability, see Arenella’s Character, Choice and Moral Agency, in Crime, Culpability And Remedy 59-83 (E.F. Paul et al. 1990). An obvious point (often missed) is this:Just because character is relevant to criminal liability, it does not follow that this is the same as punishing for thoughts alone or character alone. The law is interested in character-as-revealed-in-actions, not in those aspects of one’s character that one manages to keep under control and never reveal in behavior. That the law will punish you for revealing your hateful disposition in hateful actions still allows you to stew in your own private hatreds all you want. I think this distinction is nicely respected in the common linguistic tendency to refer to general passions and dispositions of character as motives only when they enter into the explanation of behavior.
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(1990)
Crime, Culpability And Remedy
, pp. 59-83
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5
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0004246155
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For elaboration of the idea that the harm in assault is in part a function of the symbolic message being sent by the assaulter and received by the victim, see, by J. G. Murphy (Chs. 1, 3 and 5) J. HAMPTON (Chs.2 and 4)
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For elaboration of the idea that the harm in assault is in part a function of the symbolic message being sent by the assaulter and received by the victim, see Forgiveness And Mercy by J. G. Murphy (Chs. 1, 3 and 5) J. HAMPTON (Chs.2 and 4) (1988).
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(1988)
Forgiveness And Mercy
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