Wednesday, June 5, 2013

(Hate) Crime and Punishment

There is something I find disturbing about punishing a person for what motivates him or her to commit a crime (beyond motivation in the sense of intent to commit a crime).  It is easy enough for me to accept that a person's motives may be objectionable in and of themselves; in other words, that they are objectionable regardless of whether they precipitate commission of a crime.  But it is difficult for me to accept that motives, in and of themselves, should subject people to criminal penalties.

I suppose the Orwellian concept of Thoughtcrime figures in my concern.  But hate crime cannot be said to consist of "unspoken" thoughts or feelings as presumably the criminal act is an expression of the objectionable motive.  In other words, a hate crime does not exist unless it is reflected in the "normal" crime with which it is associated. 

Hate crime is bias-motivated crime.  As such it must necessarily involve crimes against certain classes of persons deemed to be the subject of bias.  Just what classes are the subject of bias can probably be determined statistically.  Punishment is not, apparently, considered appropriate merely for hate.  One person may hate another and cause harm because of such hate in various circumstances which don't reflect a bias as defined in the law.

So it would seem that the idea behind such law is that hate is not itself objectionable enough to warrant punishment.  Only hate of a particular kind, therefore, constitutes a hate crime.  And that would seem to be hate directed against certain definable categories of people. 

If that is the case it would seem appropriate to ask why that kind of hate as opposed to other kinds should be criminal.  A victim of a hate crime would seem to be injured as a result of assault, for example, no more and no less than the victim would have been injured had "bias-motivation" not been present.  It would be most difficult to establish that when improper bias is involved an assailant is more violent than when he is not.  If there is no greater injury, why should there be an "additional" crime subjecting the assailant to additional penalty?

I think this brings us closer to the concerns I have.  What is "criminalized" is a particular motivation which legislators (in the case of legislative forms of government) have determined to be peculiarly objectionable.  What is considered a crime is in that case a political decision.  It may be said in response that this is the case with all crimes, since criminal laws are adopted by legislators or government generally and so are necessarily political in that sense.  And that is certainly true.

However, there is a significant distinction between laws criminalizing conduct which causes some kind of physical injury and criminalizing "conduct" which consists of nothing more than objectionable beliefs.  Where belief or bias is made subject to criminal penalty, the possibility of misuse of political power and the law is much greater, because this makes the decision regarding what is criminal dependent to a much greater extent on the beliefs and biases of those making the laws, regardless of whether harm is caused to others.

Perhaps it's possible to establish that bias-motivated crimes are prevalent in some fashion, and the argument made that this fact warrants the adoption of laws punishing hate crimes.   But if we were able to determine that those holding certain beliefs are more likely to commit crimes than others, should they be subject to greater penalties than those who commit the same crimes but don't hold such beliefs?  Shouldn't we impose penalties on a case by case basis?

If it is maintained that hate crimes cause psychological harm in addition to physical harm and should be subject to greater penalty as a result, I suspect that would be something difficult to prove.  It may also raise questions regarding whether the imposition of psychological harm should be criminal, and under what circumstances.

To the extent that the law should be a device to address objectionable bias (and this presents difficult issues as well) I think it is better that the civil law serve this purpose rather than the criminal law.  Bias against people due to race, sex and other prohibited categories already can subject bigots to substantial pecuniary harm.  Bigotry should not necessarily be criminal, though.  What is considered bigotry or improper bias may change with governments and with societies and over time.

Hate crime may not be Thoughtcrime, but the temptation to make thought criminal is too strong with us and is something we should discourage, not encourage.  Hate crime is a step in the direction of Orwell's dystopia.

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