Wednesday, October 28, 2009

Hate crimes, classification, and motivation

Posted by Sherry F. Colb

My column on FindLaw today focuses on conservative critiques of the hate crime bill that President Obama is scheduled to sign into law today.  The law would extend federal hate crime status (subject to federal prosecution) to otherwise criminal acts that involve victims selected on the basis of sex, sexual orientation, and disability.  Some critics have suggested that hate crime laws amount to "thought crime" laws because they differentially punish conduct on the basis of what's going on in the perpetrator's mind.  My column explains why this critique is ill-founded and would, in any event, prove too much for the critics' own taste.

In this post, I want to raise a distinct question about hate crime laws, which is whether it makes sense to single out classification (e.g., selecting a victim because he is gay) rather than underlying purpose (e.g., harming a person belonging to a group you hate).

Consider an example.  A robber might decide to choose a victim on the basis of disability.  A victim who is blind, for example, will have a more difficult time identifying the perpetrator than a sighted victim would have.  A victim who is in a wheelchair will have a more difficult time pursuing the perpetrator than a victim who is able to run.  If a robber chooses the victim in this way, does the fact that he is selecting his victim on the basis of a disability make his crime worse than that of a different robber who does not make this choice?  Isn't his choice more opportunistic than it is hateful?  And should this matter?

To put these questions into context, consider the murderer who selects his victim because the victim is gay, and the murderer hates gay people.  The murder here (of Matthew Shepard, for example) strikes many people as worse than a murder that is not motivated by hatred of gay people (e.g., the murder of an employer in retaliation for his firing of the perpetrator).  The crime is truly a "hate" crime, driven by animus, and is not simply opportunistically targeted at a gay person.

In both sorts of cases, the perpetrator is choosing his victim because of the victim's membership in a particular class.  What differs is the answer to the second-order question of why the perpetrator is selecting a victim on the basis of a prohibited category.  Some reasons for selecting victims on the basis of race, sex, sexual orientation, etc., seem to many to be more reprehensible than other reasons for selecting victims on these bases.

I do not have a definitive answer to this question, but I am inclined to favor the classification approach to hate crimes (to the extent that having hate crimes is a good idea at all, which is a question for another day).  Determining why a person chose a particular victim is a challenging enough endeavor, in part because it is difficult to know why people do what they do and in part because even the people in question may not know what ultimately drove them to act as they did.  To require an inquiry into what exactly motivated the perpetrator to select the victim for the reason he did adds another layer of complexity and difficulty to the process.

If we want to have laws that specifically penalize hate crimes, the classification-based selection of victims is a useful (if not perfect) proxy for classification-based animus.  Requiring greater precision (in the form of "X selected Y because of his gender identity on the basis of X's hatred of people with Y's gender identity) is unlikely to succeed and will commit resources to an inquiry that may ultimately be unanswerable.

14 comments:

Ross said...

This response relates more to Professor Colb's FindLaw article than the blog post.

First, I think that there is a legitimate distinction between requiring a mens rea as an element of a crime and creating additional penalties for the motivation behind the crime. As I understand it, mens rea generally deals with the level of culpable intentionality behind the crime -- i.e. how intentional was this infliction of harm. The more intentional (e.g. malice aforethought), the more harshly we punish, and rightly so. In other words, we punish the decision to commit the crime.

On the other hand, "thought" or "motivation" crimes punish not the decision, but the reason -- the "why?". The concern, which Colb broadly attributes to Republicans who disrespect gays' rights, is that hate crime statutes punish offenders who committed identical acts with the identical mens rea differently based on their reason for committing the crime. The reason is based on an opinion or a motivation.

While it seems strange to provide greater punishment for motivation on top of an already bad act, it does seem legitimate to look to motivation to determine *whether* an act is bad to begin with. The employment setting provides the perfect example: a firing is not bad per se, but it would be if the motivation were racial. On the other hand, a beating is bad per se, and we don't need motivation to determine that. Its badness is only tied to its intentionality under general mens rea principles.

Should a person who kills for commercial gain be punished more or less than a person who kills because of scorn for a former lover? These considerations seem more appropriate for sentencing than in the creation of new crimes.

So, in the case of racially or sexually motivated beatings, there is punishment for the act and the level of intentionality (consciousness of the disregard for the harm inflicted) already. Its moral repugnancy is already built in with the mens rea element, and additional considerations can come in at sentencing.

I do not agree that an aversion to making special crimes tailored to the myriad idiosyncratic motivations a perpetrator may have indicates an animus towards any of the groups that may be targeted by those motivations. The aversion does reflect, in part, a concern that groups should not be singled for special protection. Beating a poor, gay, black woman is no more or less wrong than beating a rich, white, heterosexual man. The notion is that the criminal law should provide equal protection to citizens by providing equal disincentives to harming anyone, regardless of their background.

Tam Ho said...

Ross - I really think mens rea has nothing to do with what Sherry is talking about. And along the lines of your last paragraph, if we were operating in vacuo, it would be true that it's no worse to commit a crime against someone because they're gay than it is to do so because they're straight. The problem with using the majestic equality of that reasoning to oppose hate crime legislation, however, is that it ignores the reality that heterosexuals don't get murdered for their sexual orientation whereas gay people frequently do.

Further to your comment, Sherry, that the issue of whether hate crimes legislation is for another day: for me, the answer came at the end of your findlaw post (which I only skimmed, so if you actually did explicitly answer it there, my apologies).

To me, it's not the deterrence value. Let's face it. Except for cases of reasonably justified or excusable homicides, someone who is so off their rocker that he will kill another human being (for any reason, but especially due to bigotry) is not going to be deterred by the additional punishment of hate crimes legislation.

As you say at the end of your findlaw post, the value is symbolic. Hate crimes legislation is necessary despite the existence of the corresponding non-hate crimes for the same reason gay marriage is necessary despite the availability of civil unions that provide the same underlying rights: it's a repudiation of bigotry. And as a corollary (and I feel like I am just repeating you here), refusal to adopt hate crimes legislation, at least so long as widespread prejudice against gays is still a reality, is a bad thing for the same reason refusal to allow gay marriage is a bad thing: it sends a message that gays are second-class citizens, and it implicitly condones bigotry.

Tam Ho said...

er, "... whether WE SHOULD HAVE hate crimes legislation ..."

egarber said...

>> Beating a poor, gay, black woman is no more or less wrong than beating a rich, white, heterosexual man.



True on one level, but consider this hypothetical. Suppose person A is killed because he stumbles into a drug deal, and he’s gunned down essentially as a bystander. Now suppose person B is specifically targeted, because the assailant knows he's loaded and wants to rob him.

Whether we’re talking about separate crimes or augmented sentences, these are unique situations. In both cases, the deaths are equally tragic; but in the latter, there are *additional* offenses. That doesn’t diminish the importance of person A’s death, any more than adding solar panels to my roof changes the quality of my home's core foundation.

Ross said...

Egarber's comment illustrates my purpose for including the discussion on mens rea.

As Egarber successfully demonstrates, "thoughts" are an element of a crime in that they measure a level of repugnant intentionality. That is, accidentally killing a bystander may be punished less than intentionally killing an adversary because the intention kill the former was less than the latter. In this sense, we do punish "thought" crimes on the basis of a mental state.

My point was to distinguish this mental state of *intentionality* from the separate one of *motivation*. While intentionality grades the level of criminality of what is a per se bad act (e.g. hot vs. cold blood), motivation determines the threshold of what is a crime and what is not (e.g. a regular firing of an employee vs. a racially motivated one).

I sought to explain the objection to hate crimes by showing how they are anomalous in using motivation as a grading of a crime rather than as a threshold determination of whether a crime was committed.

In response to Tam Ho, it is true that certain classes of individuals aren't targeted for attack based on a particular trait while others are, but almost everyone has some trait that makes that person more likely to be targeted for some crime than some other person. E.g., assuming that rich people are more likely to be targeted for robbery, it doesn't mean that we should impose greater penalties for stealing from the rich.

Of course, gays are targeted for general harm and invidious discrimination in ways that heterosexuals aren't, and other areas of law bear this out, like marriage law. The reasoned position against hate crimes is that these other areas of unequal treatment should be eliminated rather than increasing already existing penalties for attacks on gays.

Using motivation as a threshold question, though, is another matter. For example, it would be reasonable to add sexual orientation as a prohibited classification for hiring practices.

egarber said...

>>My point was to distinguish this mental state of *intentionality* from the separate one of *motivation*.

I understand that motive and intent are separate things, in a legal context.

But there clearly are times when motivation takes tangible form as intent when the crime is actually committed, no? I think when it comes to hate crimes, they're joined at the hip.

Ross said...

Egarber, I don't think so. The intent is a measurement of how deliberate was the decision to attack. The motivation is the reason for the decision to attack. As Professor Colb points out, these may be divorced, as when an attacker who hates Catholics attacks a Catholic not for being Catholic, but for some other reason. There may be high intent, but no hate-based motivation.

egarber said...

>>As Professor Colb points out, these may be divorced,

Right. Good point. I didn't mean to say that motive drives intent in every case. That's why the bar (standard of proof, etc.) needs to be set high enough to weld the two -- so acting on the "hate" becomes (essentially) an aggravating factor.

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