Punishing hate and achieving equality

Criminal Justice Ethics

Volumn 24, Issue 1, 2005, Pages 19-30

  Adamsa, David M ^a  

^a CALIFORNIA STATE POLYTECHNIC UNIVERSITY   (United States)

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EID: 77949548453     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.2005.9992177     Document Type: Article

References (75)

1. See the Symposium in Criminal Justice Ethics 11 (2) (Summer/Fall, 1992).
2. At least some of the constitutional challenges to bias-crime statutes were settled by the ruling in Wisconsin v. Mitchell 508 U.S. 476 (1993) in which the Supreme Court rejected the argument that the biased thoughts motivating hate crimes are constitutionally protected forms of expression. For a thoughtful exploration of this issue
3. Andrew Altman, The Democratic Legitimacy of Bias Crime Laws: Public Reason and the Political Process, Law and Philosophy 20 (2001): 141-73.
4. See Heidi M. Hurd, Why Liberals Should Hate 'Hate Crime Legislation', Law and Philosophy 20 (2001): 215-32.
5. See, e.g., Susan Gellman, Hate Crime Laws Are Thought Crime Laws, Annual Survey of American Law (1992/1993): 509-31
6. See also, Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence?, UCLA Law Review 39 (1991): 333-96
7. Eric. J. Grannis, Fighting Words and Fighting Freestyle: The Constitutionality of Penalty Enhancement for Bias Crime, Columbia Law Review 93 (1993): 178-230.
8. James B. Jacobs and Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics (New York: Oxford University Press, 1998), 121.
9. See, e.g., Jeffrie G. Murphy, Bias Crimes: What Do Haters Deserve? Criminal Justice Ethics 11 (Summer/Fall 1992): 20-23.
10. Take beliefs, for example. The law enhances my punishment, both for cases in which I entertain, and those in which I fail to entertain, certain beliefs. I bring a loaded gun into the local shopping mall and begin to shoot in all directions, aware that there are others present and that they might be hurt. I am arrested and charged with reckless endangerment. The warrant for that charge turns on a key feature of my beliefs-namely, that I recognized the risk posed by my conduct.
11. See Gellman, Hate Crime Laws Are Thought Crime Laws. Hurd maintains that ethnic and racial bias or hatred are not motives in the right way, in that they refer neither to purposes, to goals, nor to specific intentions which take future states of affairs as their object. Bias is a dispositional state, not the kind of occurrent mental states typically cognizable as mental elements in criminal law.
12. Hurd, Why Liberals Should Hate 'Hate Crime Legislation'.
13. Dan M. Kahan, "Two Liberal Fallacies in the Hate Cime Debate, Law and Philosophy 20 (2001): 175, 183.
14. See R.A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press, 2001), 140: Punishment cannot then in justice be harsher than the offense deserves."
15. I assume but do not argue for this minimal constraint. Some, such as Duff, argue that proportionality, understood in the negative sense that penalties imposed ought not to be disproportionate to the crime punished, is intrinsic to any form of punishment (Punishment, Communication, and Community, 132), certainly to any retributive view. This commitment to proportionality leaves open precisely how what is deserved is to be measured: for example, as a function of some combination or weighting of such factors as the seriousness of the harm produced by the offender's conduct or the culpability evidenced in his or her conduct. For explorations of these issues
16. for instance, Anthony Dillof, "Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, Northwestern University Law Review 91 (1997): 1015-81
17. Frederick Lawrence, Punishing Hate (Cambridge, MA: Harvard University Press, 1999)
18. Alon Harel and Gideon Parchomovsky, "On Hate and Equality, Yale Law Journal 109 (1999): 507-39.
19. Such laws are analogous both to older masking and night-riding laws aimed at curbing Klan violence in many southern states and to current institutional vandalism laws, that penalize acts which damage churches, mosques, or other religious structures.
20. See, e.g., GA. Code Ann. 16-11-38 (2002).
21. In Minnesota, St. Paul's Bias-Motivated Crime Ordinance, at issue in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992),
22. penalized the placing on public or private property of symbols or objects such as swastikas or burning crosses with the intent to cause alarm or resentment. As Frederick Lawrence has argued, even these laws are not entirely free-standing criminal prohibitions, since they can be viewed as enhancing penalties for the underlying crime of assault in the form of menacing or terroristic threat."
23. Frederick Lawrence, Resolving the Hate Crime/Hate Speech Paradox: Punishing Bias Crimes and Protecting Racist Speech, Notre Dame Law Review 68 (1993): 673-721.
24. Many of these statutes closely track the model statute framed by the Anti-Defamation League (ADL).
25. Civil Rights Division, ADL Legal Affairs Department, ADL Law Report: Hate Crimes Statutes: A Response to Anti-Semitism, Vandalism, and Violent Bigotry (1988 & Supp. 1990), citing examples. These laws criminalize acts of intimidation, defined as conduct constituting an existing criminal offense, such as assault, and attach a greater penalty where the assault was committed by reason of the actual or perceived race, color, religion, national origin, or sexual orientation of the victim.
26. Wis.State.Ann. 939.645 (West 1996).
27. N.Y. Penal Law 240.31 (McKinney 1989)
28. Fla.Stat.Ann. sec. 775.085 (2003). Some states, such as California, enhance penalties by simply including bias as an aggravating factor or circumstance to be considered at the sentencing phase of a criminal proceeding. Such penalty enhancements may either be mandated or available at the court's sentencing discretion.
29. Cal. Penal Code sec. 422.7 (2003).
30. Ohio Rev. Code Ann. 2927.12 (1997)
31. New Jersey Statutes Anno. 2C: 44-3 (2003). Similar penalty enhancements are now available under federal law.
32. Violent Crime Control and Law Enforcement Act of 1994.
33. The supervenient nature of hate crimes is apparent, for example, in the case of New York's Hate Crimes Act of 2000.
34. The Practice Committee on the Act asserts that "upon the commission of the predicate crime, a simultaneous violation of the 'hate crimes' statute takes place. N.Y. Penal Law 485, Dorrannio, Practice Commentary (McKinney Supp. 2002).
35. According to the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), elements of a hate crime augmenting the punishment of a defendant above the maximum allowed for the underlying offense must be submitted to a jury and proven beyond a reasonable doubt.
36. As a result of the 1994 Federal Hate Crimes Sentencing Enhancement Act, the Federal Sentencing Guidelines were revised to require an enhanced sanction if it is found that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, sexual orientation of any person. The proposed federal Hate Crimes Prevention Act of 2003 would, if passed by Congress, have similar effect.
37. U.S. Sentencing Guidelines Manual 3Al.l(a) (2002) "Hate Crime Motivation or Vulnerable Victim."
38. Frederick Lawrence, for example, insists that a perpetrator of a crime who is motivated to select his victims on the basis of their race, religion, or ethnicity is a likely candidate to continue to commit such crimes, spurred on by the bias that-apart from the context of any particular attack-leads to a desire to search out and attack his victims. Frederick Lawrence, Resolving the Hate Crime/Hate Speech Paradox,"
39. 716 n. 164. It is worth noting that some types of enhanced punishments arguably do rest on just these kinds of grounds: recidivist statutes, for example, punish repeat-offenders more heavily than first-time criminals; firearms penalty enhancements impose stiffer sentences for crimes committed with the use of weapons; and capital murder laws typically include as an aggravating factor that the murderer was already under a life sentence. (A number of these arguments in support of hate-crime laws are found in Lawrence, Punishing Hate.)
40. Existing law aggravates the punishment for murders committed with premeditation, such as the use of poison or lying-in-wait for the victim; the Federal Sentencing Guidelines aggravate the punishment for murder when the act is committed for monetary gain; and the Model Penal Code calls for similar aggravation when the crime is particularly heinous, atrocious, or cruel, manifesting exceptional depravity.
41. Model Penal Code (1985), sec. 210.6(3)(h).
42. See, e.g., U.S. v. Lallemand, 989 F.2d. 936 7th Cir. (1993).
43. See U.S. Sentencing Guidelines Manual #Al.(b)(2).
44. Lawrence, Punishing Hate, 51-58.
45. Lawrence, Punishing Hate, 60.
46. See Jack Levin and Jack McDevitt, Hate Crimes: The Rising Tide of Bigotry and Bloodshed (New York: Plenum Press, 1993).
47. Lawrence, Punishing Hate, 61.
48. Lawrence Crocker, "Hate Crime Statutes: Just? Constitutional? Wise?," Annual Survey of American Law (1992/1993):
49. See also Cynthia Willett, The Soul of Justice: Social Bonds and Racial Hubris (Ithaca, NY: Cornell University Press, 2001), 14: hate crimes (motivated by racial, ethnic, or other rivalries) do not target the individual but the social status of the target's perceived group-affiliation. This type of crime does not only damage the individual but also reinforces large-scale social inequalities."
50. In one sense, of course, every perpetrator can be said to have relied, at least implicitly, on some criterion of victimselection; and since all selection is discriminatory, upon a discriminatory criterion of targeting. The conduct actually being targeted by penalty-enhancement statutes is the intentional selection of the victim based on that person's identity as defined by his or her membership in a protected group or class-insofar, in other words, as that person is a woman, a black, a Muslim, and so on.
51. This case is discussed by Jacobs and Potter, Hate Crimes, 25-26.
52. Of course, being targeted on the basis of a characteristic that sorts the victim into a protected class may well turn out to be a good predictor of the underlying prejudices of the perpetrator, given what we know about those who engage in hate violence. But this is not a necessary connection.
53. Dillof, Punishing Bias, 1037.
54. Dillof, "Punishing Bias," 1040.
55. Many jurisdictions follow the Model Penal Code, for example, by including these and other factors as appropriately weighed in the penalty phase of capital cases. See Model Penal Code, sec. 210.6(2).
56. See, e.g., Model Penal Code sec. 210.6
57. Harel and Parchomovsky, "On Hate and Equality."
58. Harel and Parchomovsky, "On Hate and Equality," 510.
59. Harel and Parchomovsky, "On Hate and Equality," 510.
60. Harel and Parchomovsky, "On Hate and Equality," 529.
61. Harel and Parchomovsky, "On Hate and Equality," 538.
62. Harel and Parchomovsky, "On Hate and Equality," 536.
63. Harel and Parchomovsky, "On Hate and Equality," 510.
64. Harel and Parchomovsky, "On Hate and Equality," 509.
65. Dillof, "Punishing Bias," 1076.
66. Harel and Parchomovsky, "On Hate and Equality," 534.
67. See, for example, Lawrence, Punishing Hate, 61-63.
68. See Kahan, "Two Liberal Fallacies," 185.
69. Kahan, "Two Liberal Fallacies," 182.
70. Kahan, "Two Liberal Fallacies," 181
71. Kahan, "Two Liberal Fallacies," 181.
72. Kahan, "Two Liberal Fallacies," 182-183.
73. See The Houston Chronicle, Sept. 21, 1999, A1.
74. Jean Hampton, "Forgiveness, Resentment, and Hatred," in Jeffrie G. Murphy and Jean Hampton, Forgiveness and Mercy (Cambridge, UK: Cambridge University Press, 1988), 35-87.
75. See supra., note 46.