Hate
Crimes, Oppression and Legal Theory
[1]
David A.
Reidy, J.D., Ph.D.
Assistant Professor
Department of Philosophy
801 McClung Tower
University of Tennessee
Knoxville, TN 37996
865.974.7210 (office)
865.974.3255 (fax)
Homepage: http://web.utk.edu/~dreidy
In this
paper I want to present and call attention to an argument for hate crimes laws
that has received little if any attention in the literature. I call it the argument from oppression. I want to be clear, however, about my
motivation. My reason for presenting and
calling attention to this argument is that I think the standard arguments for
hate crimes laws are demonstrably weak and that the argument from oppression is
the only alternative argument both faithful to the moral sentiments or
intuitions that make hate crimes laws so appealing to so many and sufficiently
forceful to merit further attention. My
reason is not that I am certain that it is sound or sufficiently forceful to
justify hate crimes laws. I am not.
By hate
crimes laws I mean “penalty-enhancement” laws.
Such laws enhance the penalties for a variety of crimes provided certain
conditions are met. Most of these laws
are modeled on the Anti-Defamation League of B’Nai B’rith’s 1981 model
statute. Since 1981, most every state in
the United States has adopted some such law, although they vary in the
categories of persons covered. In 1993,
the U.S. Supreme Court upheld such laws, or at least Wisconsin’s hate crimes
law, as constitutional.[2] In 1994, the U.S. Congress passed the Hate
Crimes Sentencing Enhancement Act covering crimes committed on federal
lands. In 1999, the Hate Crimes
Prevention Act was introduced into the U.S. Congress. This Act would extend penalty enhancements to
hate crimes committed a) with the aim of preventing a person from exercising a
federal right, or b) through the use of explosives or firearms. This Act was debated during the recent 2000
presidential campaign.
There are
generally two sorts of hate crimes laws, reflecting two sorts of triggering
conditions.[3] There are, first, “victim selection”
laws. These enhance the penalties for
certain crimes where the offender selects his victim “because of” her race,
ethnicity, nationality, sexual orientation, or other protected characteristics. To trigger these laws, offenders need not be
motivated by group-based animus, although very often, of course, they are. Victim selection hate crimes laws extend
enhanced penalties to the offender who, say, intentionally selects Black
victims not out of racial hatred but because he believes the police are less
likely to investigate crimes against Black victims.
But not all
hate crimes laws are victim selection laws.
There are also so-called
“group-based animus” laws. To
trigger these laws, offenders must be motivated by racial, ethnic or some other
specified form of group-based animus toward their victim. Group-based animus hate crimes laws do not
extend enhanced penalties to the offender who selects Black victims because he
wishes to minimize his exposure to police investigation. They also do not extend enhanced penalties to
the offender who assaults gay victims not because of any group-based animus
toward gays but rather because he wishes to win the esteem and acceptance of
his more or less homophobic peers.
The
argument from oppression developed in this paper is meant as a possible
justification for “victim selection” hate crimes laws. At the heart of this argument is the claim
that those belonging to groups made disproportionately vulnerable to a wide and
serious range of harms socially produced through historic, structural group
relations are owed special obligations by those belonging to groups not so
vulnerable, and by the state.[4] For an overview of the evidence regarding
the vulnerability of oppressed groups in the United States and elsewhere to a
wide and serious range of socially produced harms, see Sidanius and Pratto, Social
Dominance, Cambridge U.P., 1999. For
an overview of the vulnerability of Blacks and others to harm within the
criminal justice system of the United States, see David Cole, No Equal
Justice, New Press, 1999. In the
United States, this obligation is owed to Blacks, gays, Jews and others,
including, I think, women. And it is
owed by White straight Christian males, at least, as well as by the state. In other countries it may be owed to and owed
by members of other groups. It is, I
think, the intuitive appeal and widespread sense of this special obligation
that gives hate crimes laws their appeal.
Oddly, however, this obligation, or the argument from it to hate crimes
laws, has received little attention in the debates over the justification of
hate crimes laws. My primary aim here is
to rectify this unhappy philosophical circumstance.
I shall
frame my analysis and argument in the context of the United States. But nothing I say here precludes the
extension of either to other states.
Indeed, one advantage of the argument from oppression I develop is that
it provides even non-liberal and non-democratic regimes with a moral reason for
adopting hate crimes laws. I begin with
a brief, critical overview of the standard arguments for hate crimes laws. I then examine briefly an innovative and
helpful but ultimately unsuccessful argument for such laws recently offered by
Alon Harel and Gideon Parchemovsky.[5] Finally, with a clearer view, I hope, of how
all these arguments fail, I offer the argument from oppression. I close by highlighting some advantages and
difficulties associated with taking it seriously.
Before
taking a critical look at the standard arguments for hate crimes laws, however,
I want just to note what is often forgotten these days in the debate over hate
crimes laws. That is that it is the
paradigmatic hate crimes – for example, in the United States, against Blacks,
gays, Jews and other members of identifiable historically oppressed groups –
that constitute the background against which hate crimes laws gain their
intuitive appeal. Assuming U.S. history
as we know it to be, no number of racially motivated assaults on Whites by
Blacks or on Christians by Jews in the United States could generate the same
intuitive appeal for hate crimes laws.
In general,
proponents of hate crimes laws now make one or more of three arguments.[6] For a judicial discussion of the arguments
for and against hate crimes laws, see Wisconsin v. Mitchell, 508 U.S.
476, 1993. The first is that hate crimes
merit enhanced penalties because they cause greater harm, whether physical or
psychological, to victims or non-victim third-parties than similar but non-hate
crimes. The second is that those who
commit hate crimes merit enhanced penalties because they act from motives
morally worse than those who commit similar but non-hate crimes. The third is that hate crimes merit enhanced
penalties because they violate values or principles of non-discrimination and
tolerance between individuals fundamental to any just and stable liberal
democracy. None of these arguments is
sufficiently compelling to justify hate crimes laws.
Many who
support hate crimes laws tend to assume a priori that hate crimes cause
greater harm, whether physical or psychological, than similar but non-hate
crimes. But, of course, whether they do
or not is an empirical question.
Surprisingly, the available evidence does not offer much support for the
greater harm argument.
Hate crimes
often do cause physical harm to their direct and immediate victims. But that is because they are often assaults
and homicides, not because they are hate crimes. There is no evidence to suggest that as a
class they are more violent than other assaults and homicides. And, of course, existing laws already scale
punishment to reflect the greater harms of assaults and homicides as compared
to other crimes, as well as the greater harms of certain extremely violent
assaults and homicides as compared to assaults and homicides generally.[7]
It is also
true that hate crimes typically cause psychological harm to their direct and
immediate victims. But so do all
crimes. The greater harm argument
requires evidence that hate crimes cause greater psychological harm than
similar but non-hate crimes. The
available evidence suggests, however, that violent hate crimes actually cause
their direct and immediate victims no more, and perhaps marginally less,
psychological harm than similar but non-hate crimes.[8] Absent some plausible explanation, this claim
is counter-intuitive. But such an explanation is not hard to come by, even if
it is hard to prove. Two possibilities
come to mind. First, to cause additional
psychological harm to a victim beyond that which would be caused by a similar
but non-hate crime, a hate crime must actually manifest to the victim an intent
to harm rooted in group-based animus.
But once that intent is manifest to the victim, the victim will be in a
better position to “make sense of” the crime than he or she would have been as
the victim of an otherwise similar but typically random non-hate crime. Second, paradigm hate crimes are committed
against members of oppressed groups who are likely to have developed various
psychological mechanisms for coping with their oppressed status. Whether either of these correctly explains
the counter-intuitive empirical evidence is beside the point. Either is sufficiently plausible at first
blush to warrant taking seriously that evidence notwithstanding its
counter-intuitive nature. It is worth
noting, however, that if correct the second explanation points toward an
alternative justification for hate crimes laws tied not to an increase in
psychological harm but rather to status of hate crimes victims as members of
oppressed groups. But this possibility
must be momentarily set aside for the sake of reviewing the standard arguments
for hate crimes laws.
It might be
argued that hate crimes at least cause greater psychological harms to
non-victim third parties than similar but non-hate crimes. But there is little evidence for this claim. The two factors most likely to increase the
psychological harm suffered by non-victim third parties of any crime are the
proximity and visibility of the crime.[9]Under
Certainty, Heuristics and Biases, D. Kahneman et al., Cambridge U.P., 1982;
and Harel and Parchemovsky, “On Hate and Equality.” 109 Yale Law Journal
507, 1999. It is, of course, possible
that apart from these factors hate crimes cause non-victim third parties
greater psychological harm than similar but non-hate crimes. For example, it is possible that Blacks
generally are made to feel more vulnerable or distressed by any crime committed
against a Black victim because of his or her race than they would be made to
feel by the same crime committed randomly against a Black victim apart from any
considerations of racial identity. Of
course, such increased feelings of vulnerability or distress could arise only
from crimes against Blacks that publicly manifest an intent to target Blacks
specifically, whether out of group-based animus or otherwise. It is not implausible to think that such
crimes might cause such feelings. The
trouble at present is that there is little evidence to confirm these
suspicions.
But suppose
there was such evidence. A further
difficulty remains. With respect to many
hate crimes, the crime itself will not publicly manifest any intent to select
the victim because of or out of animus toward, say, her racial identity. Indeed, it will not be until trial that there
is any public showing that the victim was intentionally targeted because of or
out of animus toward her racial identity.
Thus, the psychological harm to third parties follows not from the fact
that the victim was intentionally targeted by virtue of her racial identity,
but rather from the public revelation of that fact at trial.
Some hate
crimes immediately publicly manifest an intent to target a particular class of
victim. The most common of these today
are property crimes such as burning a cross in an African-American’s yard or
painting a swastika on a Jewish gravestone.
And it is not implausible to think that these crimes may cause
non-victim third parties greater psychological harm than similar but non-hate
vandalisms and trespasses. It is also
not implausible to think that they contribute to a social atmosphere within
which violent hate crimes against persons appear less morally serious than they
in fact are. The trouble here is that
many, perhaps the majority, of these crimes are committed by young offenders
who are neither ideologically nor psychologically wed to any group-based
animus; they are instead confused adolescents eager simply to draw attention to
themselves and provoke social reaction through the overt violation of social
norms. These offenders undoubtedly
deserve serious attention within the criminal justice system. But there are several obvious good reasons
for thinking that the primary or dominant form of that attention ought not be
severely enhanced criminal penalties.
There are
many other arguments that might be made to show that hate crimes cause greater
harm to victims or to non-victim third-parties than similar but non-hate
crimes. It is sometimes said that hate
crimes merit enhanced penalties because they are more likely than similar but
non-hate crimes to provoke violent retaliation.
But even if this were generally true, it would justify hate crimes laws
only if the retaliation was so automatic and excusable under the circumstances
that the hate crime offender could reasonably be punished for harms brought
about, at least formally, through the conduct of others. In any case, however, it is not generally
true that hate crimes are more likely to provoke violent retaliation than
similar but non-hate crimes. Jews and
gays rarely retaliate for hate crimes.
And during Jim Crow in the United States Blacks rarely retaliated. Yet if there are any crimes deserving
enhanced penalties as hate crimes,
surely the lynchings common during that period are among them.
Sometimes
it is argued that hate crimes are more harmful in that they generate social
distrust between groups to a greater degree than similar but non-hate crimes.[10] But hate crimes committed against persons
targeted as members of an oppressed group are likely to arise out of already
existing significant social distrust between groups. This is not to say that such crimes might not
solidify or exacerbate that distrust to some degree. It is only to say that the damage done by any
particular hate crime to social trust between groups ought not be
overestimated. Indeed, the additional
social distrust engendered by hate crimes committed against persons targeted as
members of an already oppressed group may be, at least for those belonging that
group, not only marginal, but warranted and healthy, as was the Black distrust
of Whites during Jim Crow. Finally, it
bears mentioning here that bias-motivated crimes committed against persons not
targeted as members of an oppressed group are not likely to generate much new
distrust by themselves, at least not unless and until it is evident that they
are part of a larger social process aimed at group subordination. It would take many crimes intentionally committed
by tall persons against short persons over a long period of time to generate
any significant social distrust between tall and short persons.
It is
important to keep in mind that many of the psychological and social harms
offered as justification for hate crimes laws presuppose hate crimes that
publicly manifest group-based animus.
Thus, even if these harms are established by adequate empirical
evidence, they would justify enhancing penalties only for those hate crimes
that in fact manifest group-based animus to the victim and third-parties who
identify with him or her through shared group membership. Such laws would be significantly narrower in
scope than either of the two standard sorts of hate crimes statutes on the
books today: victim selection statutes and group-based animus statutes, since
neither of these statutes limits its provisions to crimes that by their very
nature manifest publicly group-based animus at the time of their
commission.
There is
much more that could be said about the (many versions of the) greater harm
argument. My hope is that enough has
been said at this point to justify concluding that the greater harm argument is
likely either unsound or too weak to justify hate crimes laws.
The
criminal law in the United States and many other states already scales
punishment according to whether an offender acts intentionally, knowingly,
recklessly or negligently. Thus, to
justify enhancing penalties for hate crimes, it is necessary to show that the
perpetrator of a hate crime who acts, say, intentionally or knowingly, is more
culpable than the perpetrator of a non-hate crime who acts in the same
way. Proponents of hate crimes laws
typically appeal here to the motives of hate crimes offenders, arguing that
they render hate crimes offenders more culpable than they would otherwise be.
Several
years ago there was a vigorous debate over whether motive is relevant to
defining and scaling criminal liability.
Several opponents of hate crimes laws argued against them by invoking
the old saw that “motive is irrelevant to the criminal law.”[11] But that debate is or is largely over. The criminal law has long made motive an element
in numerous affirmative defenses, some of which are statutorily defined. Moreover, it often makes acting with a
specific purpose a necessary condition to criminal liability or an enhanced
punishment. And there is no conceptually coherent way to distinguish between
specific purposes and motives. As Kent
Greenawalt has noted, the prohibition on appeals to motives is a red herring in
the hate crimes debate.[12]
It does not
follow that the motives of hate crimes offenders justify hate crimes laws. Indeed, while acting from racist, homophobic,
anti-Semitic or other group-based animus motives is clearly evil, so too is
acting from avaricious, sadistic or generally misanthropic motives. And it is not at all clear that the former
are more evil than the latter. To
assault or kill a person out of racist motives is not obviously worse than to
assault or kill a person just to derive sadistic pleasure from watching him
suffer. Indeed, not even all racist
motives are equally evil.[13] In the end, when adequate attention is given
to the full range of evil motives from which humans can and sometimes do act,
not only is it not clear that racist, homophobic, anti-Semitic or similar
motives are significantly more evil than other common motives for criminality,
it is also not clear how even to begin to proceed systematically to correlate
motive with criminal liability and punishment across the board. To the extent that punishment has
traditionally been defined and scaled within the criminal law in light of only actus
reus and mens rea considerations, this is no doubt the reason why.
Some
proponents of hate crimes laws have argued that it is the character rather than
any particular motive of the hate crime offender that justifies enhanced
criminal penalties for hate crimes.[14] One objection to this argument is that the
deep anti-perfectionism of American liberalism demands that the criminal law
not take character into account when defining and scaling criminal liability.[15]Philosophy
215, 2001. But there are other more
general objections that are, I think, more compelling insofar as they do not
presuppose (controversially, in my view) that American liberalism is or ought
to be fundamentally and fully anti-perfectionist with respect to character.
Character-based
arguments for hate crimes laws suffer from at least three defects. First, there is no one vicious character
trait that hate crimes offenders typically have; indeed, some hate crimes
offenders may lack any especially vicious character trait (when compared to
those who commit similar but non-hate crimes).
Consider the young White male who commits an assault specifically
against a Black man not because he is himself a racist in any sense, but
because he has fallen in with a peer group of racists whose approval he desires
greatly and he is too weak and insecure to resist or reject his new
friends. This young man surely possess a
character defect. But it is not that of
a racist, but rather that of a weak and insecure person who excessively depends
on the approval of others, any others, for his own sense of self-worth.
The second
defect of character-based arguments for hate crimes laws is that while the
racist, homophobe or anti-Semite may possess a vicious character, it is not at
all clear that it is more vicious than
that of the sadist, misanthrope or avaricious person. But suppose that vicious character traits may
be ranked along a viciousness scale.
There is yet still a third problem.
Character traits are not revealed by single actions, but rather by
patterns of conduct over time. Absent
substantial revision of existing evidentiary rules in criminal trials, it will
simply not be possible to determine whether or not a person accused of a hate
crime possesses the requisite character trait to justify penalty enhancement.
Within
liberal democracies, principles or values of nondiscrimination and tolerance among
individuals are, or ought to be, fundamental.
Sometimes hate crimes laws are defended on the ground that they are
needed to symbolize or express the shared commitment of citizens in such
societies to these principles or values.[16] Hate crimes laws give voice to our collective
outrage at the violation of these principles or values by the racist, homophobic
or anti-Semitic hate crime offender or offense.
This
argument would seem to justify only group-based animus hate crimes laws. Selecting an assault victim by virtue of his
race but not out of a racist motive does not obviously violate nondiscrimination
and tolerance norms. Importantly,
however, unlike the argument from greater psychological harm, this argument
would seem to justify group-based animus hate crimes laws of the standard sort. That is, since no appeal is made here to the
greater psychological harms done by the underlying crime, there is no need to
limit the reach of the law to only those crimes which by their very nature
manifest publicly the perpetrator’s motive as group-based animus.
There is
something to this argument from fundamental liberal democratic values. But the argument is not, or by itself is
not, as strong as it may at first appear.
One immediate difficulty is that even if we assume, given our shared
commitment to the values of nondiscrimination and tolerance, that it is
necessary to express collectively some special condemnation of typical hate
crimes offenses or offenders, it is not obvious why this must be accomplished
through enhanced penalties. There are
many other ways within the larger political culture to express special moral
concern with and condemnation of such crimes.
Given the seriousness of enhancing penalties, hate crimes laws are not
justified unless these alternatives are inadequate in important respects. It is not this difficulty, however, that I
want to pursue here. Instead, I want to
argue that the apparent strength of the argument from liberal democratic values
derives largely from the fact that what is meant by the values of
nondiscrimination and tolerance is left unclear.
Suppose
what is meant by these values is simply that persons ought not suffer harm at
the hands of others due to some morally arbitrary fact about themselves such as
their race, ethnicity, religion, etc. If
this is what is meant, then it is not clear why punishing equally all
intentional or knowing murders, assaults, vandalisms, etc., does not adequately
express our shared commitment to these values.
Furthermore, if we do indeed need hate crimes laws to express adequately
our shared commitment to these values with respect to standard group-based
animus hate crimes (e.g., racially motivated killings or homophobic
gay-bashings), it is not clear why we don’t also need hate crimes laws to
express adequately that same commitment with respect to crimes intentionally
aimed at fat or tattooed or pierced or ugly or socially awkward people by
virtue of those morally arbitrary characteristics.[17] To avoid this dilemma – namely, that we must
either renounce hate crimes laws as unnecessary or extend their scope well
beyond the paradigm hate crimes from which hate crimes laws derive their
intuitive support – more must be said about the relevant values of
nondiscrimination and tolerance.
Paradigmatic
hate crimes do not call for special collective condemnation and response merely
because they run roughshod over the liberal democratic values of
nondiscrimination and tolerance in the sense just articulated. When in the United States a Black man kills a
White man solely for racist reasons he violates the liberal democratic values
of nondiscrimination and tolerance at least in the sense just articulated. Suppose for the sake of argument that his
violation is sufficient to justify the public expression of a special
collective condemnation in the form of enhanced penalties. But now consider the paradigmatic hate crime:
a White man in the United States kills a Black man solely for racist
reasons. In this case, the perpetrator
not only violates the values of nondiscrimination and tolerance in the sense
articulated above and, let us suppose, thereby invites the same special
collective condemnation visited upon the Black man who kills a White man for
racist reasons, he also intentionally targets a person already
disproportionately vulnerable to a wide range of socially produced harms arising from historic and systemic,
group-based oppression. And this fact
about his victim, or perhaps this fact coupled with his intentional or knowing
disregard of it, renders his crime morally distinct from that of a Black man
killing a White man for racist reasons.
The intuitive appeal of hate crimes laws derives in large part from the
fact that paradigmatic hate crimes take this form; they are crimes against
victims belonging to a special class of vulnerable persons committed by persons
who intentionally or knowingly disregard that fact.
This is the
key point overlooked by the U.S. Supreme Court in its opinion upholding
Wisconsin’s hate crimes statute.[18] In that case, a Black man was given an
enhanced penalty under Wisconsin’s victim-selection hate crimes law for an
admittedly brutal and racially motivated assault on a White man. Throughout its analysis, the Court assumed
that racially motivated assaults violate nondiscrimination and tolerance norms
and that there are no morally relevant differences between Black on White and
White on Black racially motivated assaults.
The ironic result was that yet another Black man was sent to prison for
a little longer than he otherwise would have been because of a statute that
presumably gained its popular appeal in Wisconsin as a remedial social response
to racism as the historic and systemic, group-based oppression of Blacks. A further irony was that the defendant was
moved to commit his racially motivated assault only after watching the movie Mississippi
Burning and becoming enraged at the fact that it told the civil rights
story from a perspective so thoroughly White.
Thus, the U.S. Supreme Court managed to uphold hate crimes laws in a
case that put a Black male sensitive to cultural imperialism behind bars for
longer than he otherwise would have been for a violent assault.
I do not
want to deny that the defendant in this case violated liberal democratic
values. He did. The question is whether he violated the
values of nondiscrimination and tolerance as they are violated in paradigmatic
hate crimes (e.g., White racially motivated killings of Blacks) and implicated
in the legal or moral right to nondiscrimination. And here, I think, he did not. If I am right, then there remains an important
moral difference between the crime committed by the defendant in this case and
an equally brutal racially motivated assault by a White man against a Black
victim. To refuse to acknowledge this
difference risks tethering the criminal law exclusively to the perspective of
non-oppressed persons for whom “a racially motivated assault is a racially
motivated assault, and a brutal murder is a brutal murder” regardless of the
relative social positions of the perpetrator and victim. Blacks know only too well that neither all
racially motivated assaults nor all brutal murders are the same. To avoid being implicated in larger patterns
of cultural imperialism, the criminal law must find its way to theorizing crime
not just from the point of view of the non-oppressed.
I must now
explain why I said a racially motivated assault by a Black man against a White
man may violate liberal democratic values, but not the values of
nondiscrimination and tolerance as they are violated in paradigmatic hate
crimes and implicated in the legal or moral right to be free of discrimination. After all, it would appear that these values
are flouted by the Black perpetrator of a racist attack on a White to the same
degree that they are flouted by a White perpetrator of a racist attack on a
Black. But the truth is otherwise. To see why, it is necessary now to clarify
what is meant by the value of or right to nondiscrimination.
The right
to nondiscrimination is not a right to be free from discriminatory judgment or
conduct based on characteristics one cannot change or can change only at an
unreasonably high cost, psychological or otherwise. If I deny a blind person a job as an air
traffic controller (assuming there is no technological accommodation
available), I do not violate her right to nondiscrimination, even though my
treatment of her is determined by such a characteristic. Nor is the right to nondiscrimination a right
to be free from discriminatory judgment or conduct based on irrational
grounds. If I refuse to purchase goods,
no matter their quality and price, from persons who wear t-shirts with goofy
slogans on them, I do not violate anyone’s right to nondiscrimination, even
though I act irrationally. Indeed, the
right to nondiscrimination is not even a right to be free from discriminatory
judgment or conduct based irrationally on characteristics that cannot be
changed or can be changed only at an unreasonable cost. It is no doubt irrational to be moved, as
many people are, by natural good looks or height when determining who to hire
or vote for. But to be so moved is not
to violate the right to nondiscrimination of ugly or short people.
The reason
for this is that neither ugly nor short people constitute historically
oppressed groups. And the right to
nondiscrimination is most plausibly a right to be free from judgments or
treatment at the hands of others that is itself partially constitutive and
wholly symptomatic of larger patterns of group-based oppression. Group-based oppression is, of course, most
easily achieved where groups are defined through immutable or highly stable
characteristics; members of a targeted group defined by virtue of a shared but
easily altered characteristic will simply change and thereby exit the group to
avoid suffering serious harms or vulnerabilities simply by virtue of their
membership within it. And these immutable
or highly stable characteristics will often be morally arbitrary and irrelevant
when it comes to how persons possessing them ought to be judged and treated by
others. So, in most cases the right to
nondiscrimination will in application be a right to be free from judgment or
conduct tied to an immutable or highly
stable, but also morally arbitrary or irrelevant characteristic. But it is not the immutability, stability or irrelevance
of the characteristic that is morally central, but rather that the judgments
and conduct based on that characteristic are partially constitutive and wholly
symptomatic of existing group-based oppression.
Were this not the case, affirmative action policies would indeed violate
the rights of Whites to nondiscrimination.
It is not
possible, then, to explicate the value of or right to nondiscrimination, or at
least a very important aspect of it, without making reference to patterns of
group-based oppression. It follows that
a racially motivated attack by a White against a Black violates the value or
right of nondiscrimination in a manner or to a degree morally distinct from and
more serious than a racially motivated attack by a Black against a White. This explains why treating all murders, even all murders motivated by racial animus,
the same is not sufficient to vindicate fully the value or right of
nondiscrimination. And it explains why
vindicating that aspect of the value or right to nondiscrimination violated in
paradigmatic hate crimes does not require extending hate crimes laws to crimes
against the tattooed, the fat, the ugly or the socially awkward. It also suggests that it is not enough to
appeal to the liberal democratic values of nondiscrimination and tolerance in a
justificatory argument for hate crimes laws without grounding that appeal in a
deeper and more ambitious argument from oppression.
Still, even
with the foregoing in mind, there is something to the idea that a racially
motivated assault by a Black man on a White man violates liberal democratic
values in some significant sense, even if simply uttering the words
“nondiscrimination and tolerance” is insufficient as an articulation of what
exactly those values are. There is
something morally offensive about racist conduct, whether directed at Blacks by
Whites or Whites by Blacks.
But this
point deserves careful analysis. One of
the problems within American public political culture and social, political and
legal theory is that racism (and other forms of structural, group-based oppression such as anti-Semitism,
homophobia, patriarchy, etc.) are routinely reduced to little more than the
aggregate social effects of actions taken by racists (and anti-Semites,
homophobes, misogynists, etc.) out of group-based animus. Now, there is no doubt that such actions are
especially condemnable when viewed against the background of fundamental
liberal democratic values. But the
social problem of racism (and other forms of structural, group-based
oppression) is neither fully constituted by nor dependent on such especially
condemnable conduct by individual racists (anti-Semites, homophobes,
misogynists, etc.). No number of
racially motivated crimes or hostile acts against Whites by Blacks could
constitute the oppression of Whites by Blacks without a fundamental change in
the larger and rarely articulated network of social norms within which Whites
and Blacks are formed and asymmetrically positioned as social groups. Thus, if the criminal law is to be placed in
service in the struggle against historic, structural, group-based oppression –
and that is surely what proponents of hate crimes laws intend – it is not
enough merely to enhance penalties in those cases where an individual criminal
can be shown to have acted out of a racist or other morally condemnable motive. To do that is to put the criminal law in
service in the struggle against racists.
That may be a noble cause, but it is not the same as putting the
criminal law in service in the struggle against racism. That requires more than merely enhancing
penalties for one or another class of crimes when a racist motive is present.
In a recent
article Alon Harel and Gideon Parchemovsky concede the weakness of the standard
arguments for hate crimes laws and argue for them instead from distributive
justice and equal protection premises.[19] Specifically, they argue that distributive
justice and equal protection demand that those who we know to be most
vulnerable to criminal attack or violation by virtue of their group membership
receive extra criminal law resources.
As a matter of distributive justice and equal protection, criminal law
resources ought to be distributed so as to minimize between groups
significantly unequal vulnerabilities to crime.
Criminal law resources include primarily policing, on the front end, and
penalties, on the back end. Limiting the
inequalities in group-based vulnerability to crime can be done, therefore, in
one of three ways: additional policing
on the front end, additional penalties on the back end, or some combination of
the two.
Since it is
unlikely that the inequality gap in vulnerability to crime can be closed
adequately through increases in police protection alone, Harel and Parchemovsky
argue, there are good reasons to enhance the penalties for at least some crimes
committed against those belonging to groups already disproportionately
vulnerable to crime in general or to particular classes of crimes. Hate crimes laws, then, are justified as a way of extending to those we know to be
disproportionately vulnerable to criminal harm or violation their fair share of
criminal law resources. Since Blacks
and gays, for example, are disproportionately vulnerable to certain sorts of
assaults and violent crimes with respect to which additional policing alone can
only accomplish so much, the penalties for those crimes may be justifiably
enhanced. The justification for the
enhanced penalties is not that the crimes cause greater harm, or that the
offenders are more culpable, or that the crimes constitute an affront to
principles or values of nondiscrimination or tolerance. It is rather that there is no alternative and
feasible path to a just distribution of criminal law resources.
Now there
is something powerfully right about this argument. Harel and Parchemovsky rightly focus on the
social status or vulnerability of the victims of hate crimes and rightly
restrict hate crimes laws to crimes committed against those who are as a class
or group especially vulnerable.[20] Thus, a racially motivated assault on a
straight, able-bodied, WASP male would not be eligible for enhanced penalties
as a hate crime under the sort of statute they argue for.
Further, since there is nothing in the logic of their
argument that precludes their endorsing the sort of argument from liberal
democratic values aimed at racists (and homophobes, etc.) to a second and more
general penalty enhancing law, Harel and Parchemovsky can still allow that racially motivated assaults by Blacks on
Whites, say, deserve enhanced penalties also, albeit not for the same reasons
and perhaps not to the same degree as assaults by Whites on Blacks.
Another
important merit of Harel and Parchemovsky’s argument is that its logic
suggests, rightly in my view, that in a patriarchal society male rapes of
females belong to the larger class of hate crimes deserving enhanced penalties. Of course, it is a separate question whether
the current penalties for a male rape of a female are indeed already enhanced.
But while
Harel and Parchemovsky push the hate crimes debate in a new and profitable
direction, there is still something powerfully wrong about their argument. They focus on only the vulnerability of
victims and only their vulnerability to criminal harm or violation. This double restriction is doubly
problematic.
Consider
first the latter restriction. In
focusing on only the vulnerability of particular groups to criminal harm or
violation, Harel and Parchemovsky tacitly adopt a sort of Walzerian
sphere-specific conception of distributive justice.[21] On this conception, criminal law resources
constitute a social good to be distributed according to their own internal
logic. And that logic demands that they
be distributed solely in light of considerations tied to vulnerability to
crime.[22]
One
difficulty here is that disproportionate group-based vulnerability to crime is
very often simply one aspect of a larger pattern of disproportionate
vulnerabilities to various social harms.
This is especially so when the vulnerabilities arise out of group-based
oppression. To limit redistribution of
criminal law resources to the end of reducing disproportionate group-based
vulnerabilities to crime is therefore to have one less arrow in the quiver when
it comes to dealing with general patterns of oppression.
To be sure, the nature of various social goods
may impose some constraints on the extent to which they may be justifiably
redistributed in response to general patterns of oppression. There is indeed something odd about the claim
that we may justifiably undertake to remedy the current social, economic and
political aspects of patriarchy by, say, enhancing the punishment for any and
all crimes against women. Still, some
forms of oppression may be so systemic and deeply rooted that it would be
foolish to exclude tout court any and all remedial strategies that
involved redistributing resources in one sphere to remedy injustices or special
vulnerabilities in others. If
affirmative action is justified, it is justified not simply as a corrective to
discrimination limited to labor markets, but rather as a or one corrective to
the sort of historic, pervasive and systemic oppression of Blacks and others of
which discrimination in labor markets is just a part. There is no reason to think that the same
might not be true of hate crimes laws.
Their focus
on the disproportionate vulnerability of particular groups to the harm of
criminal attack or violation leads Harel and Parchemovsky to present hate
crimes laws as a narrowly tailored remedial social response to only the special
group-based vulnerability of hate crimes victims to crime. And this leads to some counter-intuitive
results. For example, on their view,
Black on Black crimes in the United States are eligible for enhanced penalties
as hate crimes. But Black on Black
crimes account for the vast majority of crimes against Blacks in the United
States. The result of adopting Harel and
Parchemovsky’s argument, then, would be to incarcerate even more Blacks for an
even longer period of time than is currently the case. But this hardly makes sense if we recognize
that Black vulnerability to crime, even to Black on Black crime, arises
primarily from pervasive, historic, and systemic group-based oppression of
which the shockingly high present rate of Black incarceration (and refusal of
parole, etc.) is but one symptom. If we
think of hate crimes laws as a remedial social response not just to the special
vulnerabilities of some groups to crime, but rather to the larger patterns of
disproportionate vulnerability and to the social pathologies from which larger
patterns arise, then there are good reasons not to extend such laws to Black on
Black crime. But this means rejecting or
revising Harel and Parchemovsky’s argument.
Harel and
Parchemovsky unduly restrict their focus also in that they focus on the
disproportionate vulnerability of groups apart from any sense of the relations
among groups within and through which those vulnerabilities arise. Unlike risk of harm, vulnerability to harm is
a relational property. It is a function
of the acts or omissions of others. And
group-based vulnerability is a relational property of groups. It is a function of the coordinated acts or
omissions of others acting as a group.
Individual Blacks may be disproportionately vulnerable to other
individual Blacks with respect to crime.
And as a group, Blacks may be at a higher risk when it comes to crime
than Whites. But if Blacks as a group
are disproportionately vulnerable to any other group in terms of socially
produced harms, including crime, it is not to themselves, but rather to Whites,
or non-Blacks. Their vulnerability is
primarily a function of the coordinated acts or omissions of Whites, or
non-Blacks, acting as a group. As a
group, Blacks are vulnerable primarily to the failure of Whites, or non-Blacks,
as a group to undertake the coordinated efforts needed to protect them from the
various social harms to which they are now disproportionately vulnerable. It is their failure to attend to this aspect
of Black vulnerability that leads Harel and Parchemovsky to advocate a policy
that would put more Black men behind bars for longer periods of time in the
name of addressing Black vulnerability to crime.
Because
they focus narrowly on the present vulnerability of Blacks and other groups to
crime, Harel and Parchemovsky pay no attention to the historical roots of this
vulnerability or the broader patterns of disproportionate vulnerability of
which it is typically just a par. Yet,
it seems to me that the moral obligations generated in the case of a group
recently made disproportionately vulnerable to crime for reasons having nothing
to do with longstanding historical oppression are different from those
generated in cases of groups that are and have long been disproportionately
vulnerable to crime (or other harms) because of historical, systemic
group-based oppression. There are two
reasons for this, I think. First,
history carries with it its own moral force; and a history of group-based
oppression encumbers a society with special moral obligations, obligations
consistent with but distinct from those generated by disproportionate
vulnerabilities alone. Second, long
lasting, historical group-based oppression is rarely accomplished without
significant state or governmental action.
Thus, where a particular disproportionate vulnerability, or more likely,
a general pattern of such vulnerabilities, arises out of historical oppression,
there are good reasons to think that the state or government, in addition to
citizens collectively, has a special obligation to respond.
It is
important to note that Harel and Parchemovsky do not argue that hate crimes
merit enhanced penalties because they are morally worse than similar but
non-hate crimes. They argue for enhanced
penalties as a method for achieving distributive justice and equal protection. Yet, one of the reasons so many find hate
crimes laws so appealing is the intuition that there is something about hate
crimes that makes them morally worse than similar but non-hate crimes. Harel and Parchemovsky fail to capture this
intuition. If my analysis of the
standard arguments is correct, then they are right, of course, to avoid
grounding any claims about the exceptional moral status of hate crimes in those
arguments. But the failure of the
standard arguments does not establish that hate crimes are not in themselves
morally worse than similar but non-hate crimes.
And since so many defenders of hate crimes laws seem to think they are
morally worse, it is worth considering alternative arguments for hate crimes
laws that capture that intuition.
Harel and
Parchemovsky undeniably push the hate crimes debate in a profitable new
direction. Still, their argument misses
the mark in important ways. The question
is whether we can do better.
On the
argument I want to propose, what justifies, or might justify, penalty-enhancing
hate crimes laws is the special obligation owed by non-oppressed groups, and by
the state or government, to those groups disproportionately vulnerable to a
wide and serious range of socially produced harms due to historical, systemic,
group-based oppression. This is
initially a collective obligation, owed both by and to groups. But it imposes obligations on individuals as
well. To say that Whites as a group have
a special obligation to Blacks as a group is also to say that individual Whites
have special obligations to individual Blacks.
To say that the state or government has an obligation to Blacks is also
to say, at least, that individual state or government officials have special
obligations to Blacks. In each case, the
latter individual obligations are derived from the former collective or group
obligation. I cannot give a full account
of that derivation here.[23] But the idea that individual obligations are
sometimes derived from group-based obligations is fairly noncontroversial. The important point here is the content of
the obligation. It is two fold. Non-oppressed groups and the state or
government have a special obligation (which devolves to persons belonging to
non-oppressed groups and state or governmental officials) to make extra efforts
to act as a group in a manner reasonably calculated, first, to redress the
disproportionate vulnerabilities suffered by oppressed groups, and second, to
reorder social relations over time to eliminate patterns of group-based
disproportionate vulnerability and the oppression of which it is a
symptom. Hate crimes laws, or modified
hate crimes laws, then, might be justified as part of a general societal effort
to meet this obligation.
This
obligation is grounded not in the causal responsibility of non-oppressed groups
for the disproportionate vulnerability of oppressed groups. But rather in the fact that non-oppressed
groups are especially well placed to redress and eliminate that vulnerability
(and that oppressed groups are not similarly well-placed as groups). It is the ability of non-oppressed groups to
respond effectively to the vulnerabilities of the oppressed that grounds their
moral obligation to make special efforts to so respond. In this regard, the special obligation owed
by non-oppressed groups to oppressed groups is not altogether different from
other familiar cases of special responsibilities or obligations. The United States government has special
obligations to Native Americans, apart from any treaty provisions, because
Native Americans are disproportionately vulnerable to a wide range of social
harms that the United States government can most effectively prevent. And purveyors of medical treatments have
special obligations to the terminally ill because the terminally ill are
especially vulnerable to exploitation through fraud or manipulation, a harm
purveyors of medical treatments are themselves most effectively able to
prevent. In all these cases special
obligations (to make extra efforts of a particular sort) arise from the
relationship between a group disproportionately vulnerable to a harm or harms
and a group or groups with a disproportionate
ability to prevent or redress that harm or harms.
On the
argument I am suggesting here, when a White man intentionally selects a Black
victim to assault he commits a crime morally worse than a similar assault on a
randomly selected victim, not for any of the standard reasons, but rather
because he violated in a particularly egregious manner his special obligation
to make extra efforts to act in a manner reasonably calculated to redress Black
disproportionate vulnerability to harm and eliminate oppression over time. Individuals belonging to non-oppressed groups
egregiously violate this special obligation when they intentionally or
knowingly (and perhaps even recklessly or negligently) select of a member of an
oppressed group as a criminal victim, or at least they do so in some
cases. It is this that makes the hate
crime morally worse than similar but non-hate crimes. It is also this that accounts for the moral
difference between a racist assault by a White on a Black and a racist assault
by a Black on a White. Only the former
assault involves an egregious violation of the special obligation under
discussion here.
Given the
historical nature of, and state or government complicity in, many cases of
existing group-based oppression (of, for example, Blacks, Native-Americans,
women, gays, Jews), state or government officials, including perhaps citizens qua
citizens, also have special obligations collectively to make extra efforts to
act in a manner reasonably calculated to redress disproportionate patterns of
vulnerability and to eliminate the oppression from which they arise. Assuming that at least some crimes committed
by members of non-oppressed groups intentionally or knowingly against members
of oppressed groups are morally worse because they egregiously violate a
special obligation owed by the former to the latter, then state or government
officials, and perhaps citizens qua citizens, are obligated to take
special steps to address that fact. Hate
crimes laws, then, or at least suitably revised hate crimes laws, may be
justified as a, or part of a, collective institutional response on the part of
officials and citizens generally to the special moral status of at least some
crimes committed by members of non-oppressed groups against members of groups
subject to historic, structural, group-based oppression.
It must be
noted here that the sort of disproportionate vulnerability to harm suffered by
oppressed groups is itself a sort of harm.
This is not to say that a disproportionate vulnerability to harm X is
the same thing as harm X itself. It is,
rather, only to say that a disproportionate vulnerability to socially produced
harms, or more to the point, a pattern of such vulnerabilities, may be, indeed
typically is, itself psychologically damaging, even if the threatened harms
themselves never materialize. To be
Black in the United States, for example, is to live, by virtue of group
membership alone, subject to a far higher vulnerability to poverty, violence,
unjust discrimination, marginalization and powerlessness than to be White. And this vulnerability is itself a sort of
harm, a burdensome and avoidable social and psychological constraint within
which one must make and execute choices, even for those Blacks who manage to
escape poverty, violence, unjust discrimination and the rest. Similarly, to live as a woman in the United
States is to live by virtue of group-membership alone subject to a far higher
vulnerability to rape as well as many of the other harms just mentioned. And this vulnerability is itself a harm, a
harm suffered even by affluent, professional women who never suffer being
raped.
To use the
traditional but misleading jargon, the special obligation owed by non-oppressed
groups to oppressed groups is both a negative and a positive duty. It is a negative duty in that members of
non-oppressed groups have a special obligation to members of oppressed groups
to make extra efforts to prevent the harms of poverty, violence and the like,
as well as the harm of disproportionate vulnerability itself. It is a positive duty in that they also have
a special obligation to make extra efforts to redress these harms, including
that of disproportionate vulnerability itself.
This distinction, however, between negative and positive duties, or
alternatively between duties of non-maleficence and beneficence, is not very
deep. The affirmation of any negative
duty or duty of non-maleficence entails necessarily the affirmation also of
positive duties or duties of beneficence.
If I am as a general moral matter duty bound not to visit harm X on Y,
then I am also, other things equal, duty bound to take at least some
affirmative steps to protect Y from X and to remedy Y in the case she suffers
X.[24]
Hate crimes
laws justified by appeal to the special obligations owed by non-oppressed
groups to oppressed groups could, in principle, extend to crimes against
members of any group specially vulnerable not just to criminal harm or
violation, but to any sufficiently wide and serious range of socially produced
and avoidable harms rooted in longstanding, pervasive group-based oppression. But laws so justified could extend only to
crimes against members of such oppressed groups, not to crimes against members
of non-oppressed groups.[25] They would justifiably take the
victim-selection (rather than the group-based animus) form, since it is not any
racist, homophobic, anti-Semitic or other motive (or analogous character trait)
that merits the penalty enhancement, but rather the failure to meet the special
obligations owed to those who are already disproportionately vulnerable to a
wide and serious range of socially produced and avoidable harms arising from
historic group-based oppression.[26] They would cover the case, therefore, of the
young man who intentionally selects a Black assault victim not out of racist
motives but to impress and win the approval of his racist peers. But they would not cover the same case if the
racial identities of the victim and perpetrator were reversed.
Hate crimes
laws justified by the argument from oppression would not extend to Black on White
crimes. Nor would they extend (with
perhaps one exception to be discussed below under the section titled
“Difficulties”) to Black on Black crimes in the United States (as would the
laws Harel and Parchemovsky propose).
Indeed, the logic of their justification precludes this in two
ways. First, Blacks are not a
non-oppressed group and thus are under no special obligations of the relevant
sort (since as a group they have no special ability to prevent or redress harms
to Whites as a group). Second, insofar
as hate crimes laws on this justification are aimed morally at the general
social pathology of historic, systemic, group-based oppression, they cannot
justifiably be extended in ways likely to function over time to exacerbate
rather than remedy such oppression or the disproportionate vulnerabilities to
which it gives rise. Since extending
hate crimes laws to cover Black on Black crimes does just this, it must not be
done.
Of course,
while hate crimes laws justified by and adjusted to the argument from
oppression would not cover, say, a racist assault by a Black man against a
White man in the United States, there is nothing in their logic that precludes
extending to such a case a second sort of penalty-enhancing law grounded in,
perhaps, an argument from general liberal democratic values. From the fact that the argument of oppression
provides no justification for enhancing penalties in such cases it does not
follow that there is no justification at all for doing so. As I have argued, however, none of the
alternatives are very compelling. For
example, an argument from liberal democratic values that is not itself part of
a larger argument from oppression inevitably runs into the problem of covering
too many cases (crimes against the tattooed, the fat, the ugly, the short,
etc.) to retain its appeal. In the end,
the criminal law cannot be put in service in the struggle against racism unless
it takes seriously the disproportionate vulnerabilities of oppressed groups to
a wide range of structurally and socially produced harms, and the special
ability of non-oppressed groups to protect against, redress and eventually
eliminate those harms and vulnerabilities.
Of the arguments for hate crimes laws, it is only the argument from
oppression that pushes the criminal law down this path. Of course, it must be admitted that adopting
the sort of revised hate crimes laws suggested here would constitute but a
small contribution toward putting the criminal law in service in the struggle
against racism.
Some theorists argue that the failure
to take seriously and be moved morally by the disproportionate vulnerabilities
of, say, Blacks is itself powerful evidence of some sort of group-based
animus. Suppose a White man intentionally
selects a Black crime victim notwithstanding the fact that he knows Blacks to
be already disproportionately vulnerable to social harms. He selects a Black victim because he thinks
the police are less likely to investigate or that if caught his punishment will
be less severe. Suppose the same White
man knows that the elderly too are also disproportionately vulnerable to social
harms, and is moved by that fact to make special efforts not to visit the same
sort of harm on elderly White persons.
While this man is not overtly motivated by group-based animus against
Blacks (he just wants to minimize his chances of getting caught or punished
severely), he is still moved by a group-based animus. That animus is revealed by the fact that he
takes seriously the disproportionate vulnerability of elderly Whites but
ignores the disproportionate vulnerability of Blacks.
The
advantage of this view is that it permits a unified account of racism and
similar forms of oppression as fundamentally rooted in some sort of group-based
animosity on the part of some citizens toward others.[27] That is, even the sorts of conduct often
analyzed as instances of institutional racism – where overt group-based animus
is not among the obvious motives – is ultimately rooted in a deeper subtler
form of group-based animus. Now, I want
neither to endorse nor reject this analysis here. I want only to note that the argument from
oppression given here for suitably revised victim selection hate crimes laws is
perfectly consistent with, although logically independent of, this view. To select a Black victim on the basis of
race, even without the standard sort of overt group-based animus characteristic
of the typical racist, may be to demonstrate a deeper and subtler sort of
group-based animus insofar as it demonstrates a failure to attend to the sorts
of social harms to which Blacks are systematically and disproportionately made
vulnerable when one wouldn’t fail to attend to such harms if it were Whites who
were made systematically vulnerable to them.
And if this failure is especially morally condemnable and deserving of
enhanced punishment, then we have a justification for victim selection hate crimes
laws of the sort defended here. The
argument from oppression reaches the same conclusion but without taking a stand
on whether racism, including institutional racism, is analytically reducible to
the aggregate effects of individual actions arising out of group-based animus.
The
argument from oppression best preserves the close connection between the
intuitive appeal of hate crimes laws generated by paradigmatic hate crimes and
the scope and content of the laws themselves.
It correctly requires as part of the full vindication of liberal democratic
values of nondiscrimination and tolerance a morally appropriate social response
to crimes committed by members of non-oppressed groups against victims of
historic, systemic group-based oppression who are, and are or should be known
by all to be, already disproportionately vulnerable to socially produced and
avoidable harms. It also makes plain the
various ways in which the existing hate crimes debate has gone off-course. The tendency within the existing debate has
been to assume that hate crimes laws are meant as a remedial social response to
racism and similar social ills, but then to reduce the problem of racism to the
problem of the conduct of racists as individual actors. Hate crimes laws are then justified by appeal
to the greater harm caused by some of criminal conduct of racists, the more
culpable mental states of criminals who act out of racist motives, or the ways
in which racially motivated crimes specially violate liberal democratic
values. The result has been something
short of good law.
Getting the
debate over hate crimes laws back on track is a matter of thinking seriously
again about why so many feel so strongly that there is a need to undertake a
remedial social response to racism and similar social ills. One plausible and overlooked answer to that
question is that groups privileged not to suffer from historic group-based
oppression have special obligations to groups not so privileged.
There are difficulties with the
argument from oppression. And they may
to sufficient to sink the argument.
First, what are we to make of the straight Black man who assaults the
gay White man out of both racial rage and homophobia. Has he committed a hate crime against a gay
man? Or, is his crime an ordinary
assault, or at worst an assault violative of liberal democratic values of
nondiscrimination and tolerance, since he, a Black man, attacked a White man? The trouble here is that all persons belong
to a number of social groups, and it is rare that all the social groups to
which one belongs are oppressed (or non-oppressed). Insofar as many people belong to one or
another oppressed group, the argument from oppression advanced here suggests
that many people cannot themselves commit hate crimes. Given the complexity and multi-faceted nature
of group-based oppression, perhaps the criminal law is just too clumsy a tool
to use in the struggle against oppression.
The best
response to this objection, I think, is to limit the use of hate crimes laws to
the most obvious, long-lived, and troubling cases of group-based oppression –
e.g., the oppression of Blacks or Native Americans or homosexuals in the United
States. But this only limits, it does
not eliminate, the force of the objection.
Indeed, insofar as the oppression of women is one of the most obvious,
long-lived and troubling cases of group-based oppression, there is a powerful
argument for treating male rapes of females as hate crimes, even perhaps when
those rapes are committed by Black males against Black females.
Second, the
argument from oppression ranges well beyond the conventional categories of
criminal law jurisprudence and is objectionable for that very reason. Traditionally, criminal law jurisprudence is
concerned primarily with the harmfulness of the actus reus and the culpability
of the mens rea of individual offenders.
The argument from oppression is rooted in neither of these concerns and
seems to demand serious revisions to the structure of traditional legal
theory.
The best
response to this objection is, I think, two-fold. First, the fundamental point of the criminal
law is to respond through the articulation and realization of rule-following
social and institutional practices to the most serious of harms, including
those constitutive of group-based oppression.
Second, hate crimes laws as justified by and suitably revised in light
of the argument from oppression do not in any way violate the rule of law. They are thus consistent with the deepest
aims and moral constraints on the criminal law.
Thus, revisions they force on criminal law jurisprudence are no more
significant than those forced, for example, by the enactment of strict
liability criminal laws.
Finally,
there is the political problem. While I
think hate crimes laws as justified by the argument from oppression would meet
with greater public sympathy than is often supposed, especially if the
justificatory argument were carefully made, I have no illusions that they would
meet with widespread public sympathy.
They smack too much of “special rights” or “group rights.” But, at least two points need to be made
here.
First, if
citizens generally are not willing to support hate crimes laws as justified by
the argument from oppression, then the only real contender of an argument for
hate crimes laws is the argument from liberal democratic values, including
nondiscrimination and tolerance, without any reference to oppression. And the logic of that argument is such that
not only is there no reason to limit the protected classes of persons to those
belonging to historically oppressed groups, there is no reason to limit the
reach of the laws to crimes committed against persons because of their race,
ethnicity, religion, etc. Crimes
committed against persons because they are from the South or because they are
tattooed or because they are an opera enthusiast would seem also to violate
liberal democratic values so understood (although not my understanding of the
value of or right to nondiscrimination as specially violated in paradigmatic
hate crimes and implicated in the legal right to nondiscrimination) and thus be
eligible for enhanced penalties. Pushing
citizens to confront this fact and respond accordingly through legislation is a
step toward public honesty and political integrity.
Second,
even if citizens presently reject hate crimes laws as justified by the argument
from oppression, there is merit in their confronting the argument insofar as it
places four square on the public agenda the problem of historic, systemic and
on-going group-based oppression and the question of whether such oppression
generates special social obligations on the part of citizens generally or
non-oppressed citizens more specifically.
Such a confrontation may yield positive political dividends in areas
outside of criminal law. This is
especially true at a time when the affirmative action debate has been so shaped
by legal precedents that arguments from oppression merit little attention. The more recent reparations for slavery
debate, of course, has pushed the issue of racial oppression back center
stage. But other forms of oppression it
leaves unaddressed.
VI. Conclusion.
Notwithstanding
these difficulties, the argument from oppression deserves, I think, a fair
hearing. Those undertaking to debate the
merits of hate crimes laws would do well to give it one. At a minimum, taking the argument seriously
might clarify some important points. For
example, it makes clear that there are reasons other than the desire not to
criminalize motive to favor victim-selection over group-based animus hate
crimes law. Simply selecting a criminal
victim you know or should have known to be a member of a group suffering from
disproportionate vulnerability is for some persons a failure to meet a special
moral obligation and thus may merit enhanced penalties; there is no necessary
appeal to a racist or other group-based animus.
To date the
hate crimes debate has proceeded under two assumptions: a) that there is
significant intuitive appeal to hate crimes laws, especially if one keeps in
mind the paradigmatic sort of hate crimes (certain White assaults on Blacks,
etc.), and b) that if hate crimes laws are to be justified, it must be through
appeal to conventional legal categories and traditional sorts of
arguments. Holding fast to both these
assumptions has turned out to be like trying to square a circle. Rather than conclude that the widely felt
intuitive appeal for hate crimes laws is misguided, I think it worth first exploring
the possibility that the best justification for hate crimes laws might require
some creative rethinking at the ground (if not underground, foundational) level
of contemporary legal theory.
[1] For helpful
comments on earlier drafts of this paper, I want to thank Rex Martin, Russ
Shafer-Landau, Ann Cudd, Jonathan Kaplan, John Hardwig, Alon Harel, Christine
Sistare and two anonymous referees for this journal.
[2] See Wisconsin
v. Mitchell, 508 U.S. 476 (1993).
[3] On the
distinction between victim-selection and group-based animus statutes, see,
Frederick Lawrence, Punishing Hate: Bias Crimes Under American Law,
Harvard U.P., 1999, pgs. 29-30; and Lawrence Crocker, “Hate Crimes Statutes:
Just? Constitutional? Wise?” 1992/3 Annual Survey of American Law, pgs.
486-489.
[4] On
vulnerability, and especially socially created, group based, asymmetrical
vulnerabilities, as a moral basis for special obligations on the part of those
less vulnerable, see Robert Goodin, Protecting the Vulnerable: A Reanalysis
of our Social Responsibilities, U. of Chicago Press, 1985.
[5] See, Harel and
Parchemovsky, “On Hate and Equality.” 109 Yale Law Journal 507, 1999.
[6] For a robust
and traditional defense of hate crimes laws, see Frederick Lawrence, Punishing
Hate: Bias Crimes Under American Law, Harvard U.P., 1999.
For a broad overview of hate crimes
statistics and policy considerations relied on by legislators and
policy-makers, see A Policymaker’s Guide to Hate Crimes, Bureau of
Justice Assistance, U.S. Justice Dept., March 1997.
For a wide range of fairly standard views
on hate crimes laws, including those of proponents and opponents, see the
following three Symposium issues: 1992/3 Annual Survey of American Law
(n.4), 1993; 11 Criminal Justice Ethics (n.1), 1992; and 20 Law and
Philosophy (n.2), 2001. For a
robust and traditional attack on hate crimes laws see, Jacobs and Potter, Hate
Crimes: Criminal Law and Identity Politics, Oxford U.P., 1998; and Susan
Gelman, “Sticks and Stones Can Put You in Jail, But Can Words Increase Your
Sentence?” 39 UCLA Law Rev. 333, 1991.
[7] For
discussion of this point, see Jacobs and Potter, Hate Crimes, pgs.
82-84.
[8] For
discussion of this point, see Jacobs and Potter, Hate Crimes, pgs.
82-84.
[9] See Paul
Slovic et al., “Facts and Fears: Understanding Perceived Risk” in Judgment
[10] For
discussion, see Jacobs and Potter, Hate Crimes, pgs. 88-89.
[11] See, e.g.,
Gelman, “Sticks and Stones.” 39 UCLA Law Rev. 333 (1991).
[12] See
Greenewalt, “Reflections on Justifications for Defining Crimes by the Category
of Victim.” 1992/3 Annual Survey of American Law, 617-628, esp. pg. 625.