Tuesday, June 22, 2004

Ut Fementem Feceris, Ita Metes

EDIT: Arthur at Ad Populum responds to the following article here.

On Criminalizing Hate

It is chic to oppose anti-hate crime legislation and anti-hate speech codes set by universities. The arguments against both are compelling (especially in abstract) and intellectuals on both sides of the political divide condemn both. The case against speech codes is a topic for another time, but the need for anti-hate crime laws is clear, even if it is not a popular, or even classically liberal position.

Is it legal?

Federal and State criminal codes enjoin people against certain actions for several reasons. Most basically if your action harms someone, it is forbidden. If it interferes with their exercise of a more-important right or even interferes with less-important rights gratuitously, it may be forbidden. If it indirectly harms people or society as a whole, it can be forbidden.

We punish those people who commit such acts for several reasons as well. First, we hope to rehabilitate, and thus such programs as parole exist. While people are unrepentant, we imprison them, and we release them when they have seen the error of their ways. This rationale is increasingly ignored, as states abolish parole, and rollback judicial discretion. Second we hope to deter others, by linking bad act with bad outcome in their minds. Third we want to take dangerous people off the street, so that they can do no more harm to others. Fourth, some believe "retributive justice" is a legal principle. I disagree, but even that argues for criminalizing hate.

Many argue that having additional penalties for crimes committed due to hate is unnecessary, and even illegal/unconstitutional/immoral. After all, we do not police thought, and we do not discriminate against ideas. This argument is just false. We don't criminalize thought, but we do care about motive when sentencing people. Someone who kills for money is punished harder than someone who killed their spouse's lover. Someone who kills in self-defense is often not punished at all. The REASON their action was committed is very relevant to sentencing, as above and beyond the action, we want to deter the idea that certain REASONS are valid for that action.

Are Hate Crimes "worse" than standard violent crimes?

In a sense, society is harmed more by hate crimes than garden-variety violence. In the latter case the victim is harmed, and society as whole feels less safe. In the former, both of these impacts accrue, and a specific group feels targeted as well. If tension or misunderstandings exist between one group or another, they can be exacerbated by the crime. The crime can even lead to retaliation.

This does not mollify those who feel that hate-crime laws imply "valuing" some people's lives over others. If this is so, society must also be valuing the life of someone killed in cold blood over someone killed by bad fish served at a restaurant, or someone killed by medical malpractice.

Is it useful?

There is a specific difference between most violent crime and hate crime. Most violent crime has a narrowly tailored justification in the eyes of the criminal. Person A "stepped". Person B "macked on my woman". Person C was "selling drugs on MY turf". While all bad reasons, these reasons apply to the victim, and perhaps a few others. Thus we only have to rehabilitate them to see that that narrow issue is not, indeed, sufficient justification to harm. They are only threats to those people, and thus are less dangerous to society as a whole. Even from a deterrence viewpoint, as their actions have only legitimized a narrow rationale for violence, so to is the deterrence message just a condemnation of that reason, and of violence as a resort for any reason.

On the other end of the spectrum are psychopaths and sociopaths. They harm indiscriminately, and have a mental problem. They go to asylums for the rest of their lives, or at least until they are cured. Deterrence is unnecessary, as no one "chooses" to be misanthropic on that scale. In a sense, they are also not incredibly harmful to society (so long as they are caught) as they won't legitimize bad behavior to anyone.

Hate crimes are unique in that the justification for them encompasses a huge range of people. Left alone, they can harm a great deal, like the criminally insane. However they have a perverse ideology, and thus can attract people to behave like them. Society must thus deter people from choosing this path. It has to fight against an philosophy, not a weak excuse, in delegitimizing the motive involved. They are also generically need longer incarceration than common offenders, as there was no proximate cause for their behavior, and so rehabilitation is more difficult.

Is it safe?

Having dealt with why additional penalties for hate in violence are both allowable/legal/moral and necessary, there is another area to discuss; externalities to this policy. People who oppose this policy have several arguments divorced from the specifics of the case.

Their first is that this will further radicalize the "penumbra" of people who support this behavior, but would never do it themselves. One response is that for every "Klansman in the back" who only watched lynchings until this policy was enacted, and is now motivated to violence, I would say at least one or two more "Klansmen who would have been in front" will drop back. After all, the only thing keeping the first fellow from joining in "the fun" was fear, probably of the state. If he had scruples, he still won't commit the crime. If he believed in a deity, he either has already rationalized his behavior as being supported by that deity, or his faith will stop him from committing the crime. So if fear of the state, and its punitive capacity, is all that kept him "clean", and that fear gets trumped by an increase in anger, it stands to reason that some people will be more afraid of the state as a result of this increase in the punitive capacity, and specific targeting of hate. With some people, fear's increase will once again trump anger. Often hate crimes are committed by people who are under the impression that those they hate are less than human. This sort of law at least tries to get through to them that one way or the other, society as a whole still feels they should not be harmed.

Another response would be that given the difficulty of proving motive "beyond reasonable doubt" either people will be convicted too easily or no one will ever be convicted under this law. If the latter happens, no harm has been done, and symbolically the state has said "we disapprove of hate". The former can't occur; the barriers to conviction are not lowered by any hate-crime law. If the simple allegation of hate is enough to make the jury forget the burden of proof, than existent hate crime cases are still vulnerable to this miscarriage of justice, regardless of whether this law is in place.

One of the last arguments against hate crime laws is that the groups in question will actually lose, as the law will do nothing to prevent crime (arguing that those who are sufficiently angry to forget, misconstrue, or ignore the law won't listen to higher sentences) while increasing resentment. There are two responses to this; first, these laws oughtn't have "protected groups", but rather should simply additionally punish those who commit crimes as an expression of, or as a result of, hating any societal segment. Yes, someone who hates suburban moms enough to kill them on sight is subject to this law. Secondly, the law may not deter those who commit crimes now, but it may arrest the decent of those who may have otherwise done so in the future, by showing them that society does not tolerate this behavior.

Most bigots feel that the "silent moral majority" is behind them. Show them that they are wrong.


At 1:38 PM, [REDACTED] said...

I actually agree with Rahul on everything he says other than the "we should criminalize hate" part (Other than that I almost completely agree with all his arguments, excellent LOC Rahul).

Here's my issue:

"The REASON their action was committed is very relevant to sentencing, as above and beyond the action, we want to deter the idea that certain REASONS are valid for that action."

Okay... if we think that this is going to have any sort of positive effect in stopping hate/stopping hate driven actions then why the hell dont' we just consider motive (like we do now) in sentencing and make sentences longer for those who seem to have done something out of hate. It seems easier than creating more laws and trying to work through getting them settled into the the workings of the US court system.

I see two arguments against what I'm proposing.
1. There are sentencing maximums. I'm going to say that people that kill because they're racists don't really deserve to go to prison longer than someone who killed for the fun of it. They're both bad people. Send them both jail. If the maximum is too low... then we should raise it.

2. Allowing a jury to make the determination instead of a judge. It seems more efficient to me to me to just allow the judge to tack it on than to have the jury throw another (and I'm betting I can add on the word "confusing") charge onto the list of what they're looking for. I also worry that when prosecutors start charging with a laundry load list of charges that they're going to try to hard to get all of them and it will actually hurt their cases on the whole. I dont' know about you all but I suck at multitasking and when I can focus on one or two things it's a lot easier than when I'm trying to do three or four things all at once. I will concede, however, that you have to think that a judge is generally going to be as fair as a jury is... but at the same time I feel that we largely do that when we give them the ability to set sentences.

So to recap... good arguments Rahul... I just dislike the underlying premise.

At 5:04 PM, [REDACTED] said...

This is not a legal argument, so I may be missing reams of relevant argumentation on what I am about to say, but I would like to talk more about message. It can be said that afirmative action was an initiave that had legal ramifications, and considering it and hate crime laws from that perspective is both necessary and good.

However, if all other things were equal--which clearly they are not, then I would say that an important part of laws on both hate crime and the example I am using of afirmative action are the messages such laws convey to the populace. And more importantly, the fact that the messages are conveyed throught the filter of the American media could make the neccesity of separate laws to create emphasis in a busy information world. (I am also not commenting good or bad on that format of delivery of information at this point).

How often does government create laws in order to send a message? Pretty much every day they create laws. They are politicians or working for/at the behest politicians after all. And I am not arguing, at this point, that this focus is specifically bad, though it may well be. Good or bad, it is true.

Afirmative action, despite all else, is a much talked-about and debated policy. It is not a policy that I think even supporters would contend should be permanent. It is a neccessary interim policy that speeds up the populace's reaction time to what is a legitimate problem: racial disparity in many American
institutions. The systemic reasons for this racial disparity are wide and deep. Affirmative action is a top down band-aid measure. It isn't our favorite solution, but in the meantime while education in schools and elsewhere catches up, it may be our best hope.

We can all agree that the top-down theory of government is a rather poor way of thinking. (Unless you really like Reagan. Then shame on you, go look at your bank account, donate to a charity that will support services that aren't religious to those less fortunate than you, do some community service, and then vote democrat. Oh, and recycle for goodness sake.)

Whereas trickle-down anything is dubious, fixing systemic factors is hard and takes a very long time. Instead of doing nothing, top-down, if done correctly, can be a bonus. And perhaps this is the best bet for any lawmaker. If they were to incorporate fixes for the systemic factors, which will take time to show even minimal results, with the band-aid, which might save them politically and which might be a stop gap against the current atrocious outcomes, then we would have the best of both worlds.

The need for hate crime legislation, in terms of message, is to strongly convey a message to the populace through the media that hate, as a separate crime, is not ok. We especially cannot hate based on race, ethnicity, gender, or sexual-preference. Hate can lead to bad acts and social ills. It is an issue of public safety. It is an issue of providing equal opportunity. With the continuation of hate on these lines is the continuation of discrimnation of a subtler and more encompassing level.

We can not make people not hate, as we can not prove that someone does hate as a separate action. It is similar to the fact that you will not be pulled over for not wearing your seatbelt. However, if you are pulled over for something else or in an accident, you are getting that fine.

The need for hate crime legislation draws from a need to specifically discourage specific behavior. It is not rational to think that we will create anti-discrimination rehabilitation programs. We can barely fund and run the anti-drug programs we have now. As much as President Clinton wanted to start a nationally dialogue on race, it was very much a coaliton of the willing.

We need to discourage discrimination of any level. We need this message to be broadcasted across the nation. Got a better solution? I would love to hear it.

At 11:12 AM, [REDACTED] said...

I agree that the message needs to get out. My concern about it befuddling the current legal system and bogging it down keeps me from wanting to do it through creating seperate laws though. So... in a bold and probably flawed attempt to offer a better solution... here goes:

1. Let judges use it as a criterion for sentencing (see previous post for explanation then let me know why that's not preferrable to making a law. People getting sentenced more heavily when they do things out of hate I think sends the same message. If Congress wants in on that action then they can send out a congressional condemnation of hate. That'd actually be both weird and cool.)

2. Elect officials that work harder to promote inclusivity.
Okay... the logic that we're using so far is that hate is bad and we also seem to assume that most people don't want it. If that's true and it's a priority for people and the nation then I want to see more white officials at black marches and more male officials at women's rallies. I'd like to see government officials that go from an MLK day march to a take back the night march to a gay pride celebration not because they might get on the news and it'd be a nice soundbite... but because they care about those issues. There are some lawmakers who I imagine are good about that and do truly care about inclusivity. But I feel like we (the hoi polloi) need rolemodels to show us the way. And I'm not sure that the majority of them are working really had at promoting inclusivity and condemning hate. If these people are to repesent us and our values... and we don't preach hate... and we don't want anyone else to... then we need to start electing people that reflect those values.


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