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Hate Crimes Are Not Thought Crimes

Professor Kim revisits one of the classic arguments in the debate over hate crimes laws. She quotes Sen. Sam Brownback making the claim that hate crimes improperly punish people for their thoughts. Using a common counterexample, she cites the legal distinction between murder and manslaughter to show that the law already, and properly, considers perpetrators' thoughts. I think the analogy to murder vs manslaughter is inapt -- but in considering why, we can see why hate crimes laws are important.

The criminal law system exists to prevent the commission of certain acts which are harmful to others. On the score of how harmful they are to others, muder and manslaughter come out about even -- the victim is equally dead. An argument could even be made that manslaughter is worse for the victim's loved ones, since it's harder to find solace in rage at the perpetrator.

The distinction between murder and manslaughter -- and between both of these and non-criminal accidental killings -- arises from the logistics of preventing the harm of killing. We spend all the time and resources in punishing criminals because by committing ourselves to punishing those who commit crimes, we cause other would-be criminals to reconsider the costs and benefits of their actions. This type of deterrent only works, however, insofar as the would-be criminal is cognizant of, and in control of, the consequences of his actions. Thus we graduate the punishments for the same harm according to the perpetrator's state of mind -- and hence the state of mind, and consequently amenability to deterrence, of future would-be criminals.

The distinction between hate crimes and non-hate crimes, on the other hand, lies in just the opposite place. Both types of crimes carry the same degree of culpability -- if I go kill one black person because I hate black people, and another black person because he cut me off in traffic, I'm equally responsible for both crimes.

However, the crimes themselves -- the degree and type of harm I have caused to others -- are distinct. Unlike murder and manslaughter, where the victims are equally dead and their loved ones equally bereaved, a hate crime has far worse impacts on others than a non-hate crime. A hate crime sends a threat to other members of the victim's group, causing great harm in the form of fear and trauma. (This, incidentally, is why it's very hard to commit a hate crime against a dominant group -- by definition, dominant groups lack the history of hate and persecution that amplifies a hate criminal's message. Someone shooting up residents of Livonia, Michigan while shouting "death to whitey!" will simply not have the same effect on other white people as it would if someone did the same thing on the Navajo reservation.)

We can thus distinguish premeditated "hate murder" from "hate manslaughter," in which the effects on the victim's wider community were not intended but the perpetrator should have known better. It is in this distinction, not in the hate crime vs non-hate crime distinction, that questions of the perpetrator's bias come into play.

Utah's recently passed hate crimes law, which Kim links to, seems to me to be on the right track:
The bill, which passed with nearly unanimous support, was highly lauded as a compromise that removed contentious protected categories of race, religion, sexual orientation and other categories but still provided a tool for law enforcement to use.

It creates an aggravating factor to be considered at sentencing and focuses on the impact of a crime on the community, not what motivated the crime.

In an ideal world, I'm in favor of not ennumerating the categories of group that could be targeted by hate crimes, since such ennumeration would inevitably leave some groups out -- though I can see the merits of including a "such as, but not limited to" ennumeration that would prevent the courts from construing the law too narrowly. I like that the Utah law specifically focuses on identifying hate crimes by their effects, not by the perpetrator's bigotry. That framing is both more consistent with the proper goals of hate crimes law and more politically effective.


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