Responding to what I take to include my criticisms of laws defining “hate crimes” against the homeless, Ordinary Gentleman Will writes:
Obviously, intent matters. If someone is attacking people of a particular religious, ethnic or sexual orientation in an effort to harass, provoke or intimidate members of said group, it may be a good idea to assess additional punishment, particularly if a history of animosity and violence is involved. There may be practical reasons not to take this approach – federalizing enforcement is frequently ineffective; racial and religious animosity has subsided in recent decades – but it seems to me that special conditions can justify special enforcement strategies.
Remember that motivation isn’t the issue here – intent is. Attacking a black person to coerce or intimidate other black people is materially worse than randomly assaulting some unfortunate passerby. The later is aimed at only one person; the former targets a (potentially vulnerable) community.
I’m not sure that I can explain myself without getting rather deep into the philosophical weeds, but this seems importantly mistaken. In short, the reason that doing violence or otherwise committing crimes “in an effort to harass, provoke or intimidate” is certainly more serious, and possibly deserving of more serious punishment, than doing the same violence or committing the same crimes without such ends in mind, is that the former behaviors constitute different actions than the latter, in much the same way that waterboarding a CIA agent as a part of SERE training isn’t an act of torture while doing the very same thing to an unwilling al Qaeda member clearly can be. True, attacking someone as a means to coerce or intimidate or – perhaps – harass or provoke is reasonably regarded as a more serious crime than “mere” random assault, and it doesn’t seem inappropriate to include within the law a category that defines it as such; we do just this sort of thing, after all, in differentiating murder from manslaughter. But obviously it shouldn’t matter at all whether such a behavior was gone in for as a consequence of hatred for some vulnerable group rather than, say, some other sociopathic tendency or perhaps the desire to draw attention to some political cause.
Hate crime laws have got, in other words, everything to do with “motivation” rather than “intent”: just as it’s possible to intimidate or attempt to sow severe unrest on the grounds of something other than hate, so someone who attacks a homeless person because he hates or resents his homelessness clearly need not have in mind any of the wider goals that Will alludes to. And it’s those goals, rather than the particular sorts of subjective affections that motivate them, that are relevant to the determination of the seriousness of a crime.
Filed under: government/law, morality, philosophy
I think that crimes committed with the intent to harass or intimidate any group are bad, but crimes committed with the intent to harass or intimidate a historically marginalized group are worse. I also think there’s a fair case to be made that certain groups should receive additional protection in the form of more severe criminal punishment for offenders. If a particular crime is more likely to take place or more abhorrent than your run-of-the-mill offense, I’m in favor of prosecuting it more severely.
Granted, a lot of this is context-dependent, and I don’t think federal hate crime legislation is really necessary, but under the right circumstances I can see why hate crimes enforcement would be justified.
But this skirts my point, which is that “done out of hatred” is crucially different from “done with the intent to harass or intimidate”. It’s reasonable to argue that crimes of the latter sort should carry a more serious penalty, but that’s not at all what hate crime laws accomplish; the issue of hateful motivation is entirely orthogonal to that of intent.
Similarly, the issue of the targeted group’s “historical marginalization” is once again beside the point, since it’s entirely possible to take this into account without criminalizing thought – er, I mean hate. I suppose I don’t think this is something that the law should do (what happened to equal protection?), but that’s a separate issue.
[...] John Schwenkler was kind enough to respond to my post. Here’s the crux of his argument: True, attacking someone as a means to coerce or [...]
But this skirts my point, which is that “done out of hatred” is crucially different from “done with the intent to harass or intimidate”.
Intended or not, though, doesn’t a crime done out of hatred have the same effect of harassment and intimidation?
A gay couple gets jumped coming out of a bar, all gays feel less safe. It has an effect on them that a straight couple getting jumped outside a regular bar does not. So even if the hater isn’t waving some sort of sign that says “You’re next!”, much of the damage is done.
Similarly, one homeless man gets lit up and all homeless people experience a degree of horror and vulnerability that the rest of us don’t if someone in our demographic is attacked. We’re less likely to even think of it as “our demographic” at all. We have less reason to. That’s why historic marginalization is important. There is already a sense of vulnerability.
This may be true, but it’s not reasonable to prosecute someone for the unintended (or unforeseen) consequences of his actions. If I steal an apple, it may be that that bankrupts the grocer and drives him to suicide. Charging me with manslaughter, though, would clearly be wrong.
How unforeseeable is it, though, that jumping a gay couple outside a gay bar will create fear in the gay community?
And wouldn’t the purpose behind these laws be in part to emphasize, announce, and officially register that these crimes do actually have “unforeseen” consequences and thus will be treated more harshly than equivalent crimes with other motivations? The same way that we might stiffen particular kinds of crimes as it becomes clear that the damage they cause are more significant and need to be taken more seriously.
This may be right, and if you want to argue for prosecuting crimes more harshly on the basis of their intended/foreseeable consequences, that’s a position I’m willing to entertain (though I’m skeptical). But once again, hatred has nothing to do with it!
A couple of thoughts:
1.) What if there’s a compelling reason to deter violence against certain (vulnerable) groups? Does it then make sense to take an assailant’s motivation into account?
2.) Is it possible that crimes motivated by hatred are simply worse than crimes motivated by more mundane considerations? For example, is it more traumatic for a homosexual to get beat up by a vocal homophobe than it is for me to get beat up in a bar fight?
3.)
Re. 1: I’d say that there’s a compelling reason to deter violence against any group. But even if you want to single out certain groups for special protection, hatred is once again beside the point; just make the penalties more severe for crimes committed against those groups, and ignore the question of motivation. (Not that I think this would be a good law, but it seems better – and more effective in achieving your desired ends – than criminalizing hate.)
And re. 2: It depends on how serious the beating is. But if the idea is that the hatred itself could cause trauma and so warrants a more serious penalty, then once again that seems far too close to criminalizing thought. No one deserves to be legally protected from being hated, or prohibited from hating; the only crime is what is done on that basis.
Damn. I think you may be right. But I feel that conceding defeat on the Internet is somehow against the rules.
just make the penalties more severe for crimes committed against those groups, and ignore the question of motivation.
I don’t think it would make sense to ignore the motivation — you wouldn’t want the penalty for stealing an apple to be different depending on whether the grocer happened to be gay, unbeknownst to the criminal.
Well, I wouldn’t. But then again I wouldn’t want the penalty to be different depending on whether the criminal happened to hate the grocer because he was gay, either. My point was just that Will’s desideratum seemed better met by this alternative approach.
The term “hate crime” is just that. A term. Easier to say than crimes-committed-against-historically-marginalized-people-that-result-in-implied-threat. Hate laws do not make hate a crime. Commit no crime and you’re legally allowed to hate as much as you want. The problem is that once you do it, the repercussions are greater than a crime based on many other motives. There is at least an implied threat carried with it by virtue of the fact that you hostile people of a particular orientation/background/class and are, apparently, willing to act on that animosity. That’s a different bird from crimes committed out of personal malice towards an individual or greed.
Sorry, but this is just factually wrong:
My point, which I’ve been repeating again and again, is that hateful motivation neither entails nor is entailed by the intent to do a greater (or lesser) harm than that intrinsic to the criminal behavior itself, and that as such the motivation (again, as opposed to the intent) can’t reasonably be punished. Hate crime laws simply do criminalize hate, in the sense that they make hatred itself – and not just the actions that it motivates, which once again are equivalent whether or not hatred is present – worthy of punishment when it gives rise to certain behaviors. And I think that’s a very dangerous move.
If I’m allowed to carry a gun, but carrying the gun in a commission of a crime brings on a harsher penalty… does that make carrying a gun a crime? Does that mean that carrying guns has been “criminalized”?
Not in my way of thinking. Because in both cases, as long as you’re not breaking the law, you’re not doing anything criminal.
(I’m not saying that laws stiffening the penalties for guns used in the commission of a crime justify hate crime laws… just that these are two examples of things that add to the severity of a sentence but are not illegal in and of themselves and therefore I don’t believe are “criminalized”.)
And if greater harm (an implied threat to the other members of the targeted group) is a foreseeable consequence of the action regardless of the specific intent, I see that as germane.
As I said in my comment on TLOG, I’m not actually sold on the practicality or necessity of hate crime laws at present. I do see some potential danger by going that route which makes me cautious about doing so. But I do think that, in theory, there are times and places where such laws could be necessary. And I’m not sold that this inherently falls under the rubric of criminalizing thought.
Hmm? What matters is whether you use the gun in the commission of a crime. If, say, you simply happened to have a properly registered handgun on your person when you stole something from a store, it seems that making the penalty more serious simply on those grounds would indeed be a way of criminalizing possession.
Maybe it is. But once again, the question of hateful motivation – which is the thing that hate crime laws single out – is entirely irrelevant here.
The Maryland homeless law simply adds homeless to the groups covered. What it does is add a sentence enhancement if the perpetrator targeted the victim because of his homeless status. It doesn’t criminalize hate, it criminalizes the ACTION of targeting someone because they’re homeless (or gay, or black, etc.).
It says you cannot commit a crime BECAUSE OF another person’s race, religion, sexual orientation or, now, homelessness.
In other words, if I attack a gay man because I want his money it’s not a hate crime EVEN IF I hate him. If I target him because he’s gay, it’s a crime even if I DON’T hate him!
Hatred isn’t criminalized. The choice of victim is a crime.
I also have to disagree, however, that motivation is irrelevant to the law. If I intend to kill someone, it is murder, regardless of my motive (except if my motive is to prevent him from killing me). Also, many, perhaps most, criminal statutes look at the motive in determining sentencing or the degree of the crime. New York, for example, makes it First Degree Murder if you kill someone intentionally with the motive of preventing the victim’s testimony or revenge for prior testimony.
In Wisconsin v. Mitchell, (the hate crime case) the Supreme Court said pretty clearly that motive is an important factor that judges look at in determining sentencing. As an example, the Federal Sentencing Guidelines enhance the punishment if the crime was committed for financial gain and reduce the punishment if a normally financially motivated crime (copyright infringement) is committed for a non-financial motive.
For a much more complete discussion of the use of motive in the criminal law, see Carissa Byrne Hessick’s article, “Motive’s Role in Criminal Punishment,” which you can find on SSRN.
Thanks for that reference; I’ll have to check it out. But by my lights, though, both of those examples you cite clearly have to do with intent (i.e., what is sought in the crime) rather than motivation.
And you … can commit that crime, otherwise?
Sorry but I really do find this foolish. The motivation (or “act of targeting”), in contrast to what is sought or intended, doesn’t affect in any morally relevant way the content of the criminal act itself, and as such doesn’t warrant a harsher penalty.
I think your definitions of intent and motive are rather squishy – everything that the law looks at that you like is intent, everything it looks at that you don’t want it to is motive. Motive’s defined in Merriam-Webster as something that causes a person to act. So, whether I commit the crime because of a need for money or because of my hatred of gays, it’s still motive.
In the law, intent and motive have two distinct definitions. Intent means “did I mean to commit the act.” Motive is caused me to the crime. For example, if I purposefully take a bike that is not mine, knowing it is not mine, I have committed a crime, whether I sought to gain financially from the crime, send a message to silly bike owners who leave their bikes unlocked, or because I needed a bike to ride. Doesn’t impact that a crime was committed, may impact the way the law views the moral content of the crime.
In the case of hate crimes, you can think about it in terms of your definition of intent, too. What is sought in a hate crime, as opposed to another crime, is to commit a crime against someone BECAUSE of their belonging in a group. It’s no different than the sentencing enhancement for assaulting someone BECAUSE they’re a federal prosecutor or BECAUSE they’re going to testify in your trial.
As to the no greater moral content. Well, I think you’re wrong there too. Think about what it means to commit a crime against someone BECAUSE he’s gay, or because he’s black. Not because he’s got money, or because you want drugs, or because you want to commit a senseless act. BECAUSE OF that person’s status. Of course that has a different moral content than a crime to steal money. It sends a message to the community (regardless of whether that message was thought out by the perpetrator) – you are at risk simply by being in this community. You are at risk simply because you’re straight, or white. (Or because you’re a federal prosecutor or because you’re going to testify in a trial.)
Wisconsin v. Mitchell lists several ways in which hate crimes are potentially more damaging than a non-hate crime. “For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest…The State’s desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or biases. As Blackstone said long ago, ‘it is but reasonable that, among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness.’”
Check out the facts of Wisconsin v. Mitchell, which you can find on wikipedia. It seems obvious that a non-racially-motivated crime would have had a totally different moral content than the crime described there.
Greg:
I don’t think my definitions are “squishy” at all. By “intent” I just mean what the person intended to accomplish. By “motivation” or “motive” I just mean, as you put it, what causes the person to act. (Though “motive” can actually have connotations much closer to those of “intent”; I suspect this is part of the confusion, but it’s not on my end.) And I agree that intent is morally relevant, but deny that motivation is.
Moreover, note that the defense you just cited from Wisconsin v. Mitchell based entirely on appeals to real or foreseeable consequences, which I’ve granted can be reasonably considered in deciding on a penalty for a crime. But such factors fall entirely on the side of intent, and don’t have anything to do with motivation per se.
Wisconsin v. Mitchell was a bias-crime case. They were talking about a statute that is functionally identical to the Maryland law. They had a penalty enhancement for when someone selected a victim “because of” their race. You had to prove that the victim was selected because of his race beyond a reasonable doubt. There was no requirement that the prosecution prove that the individual intended to cause damage to society, that they intend to create more retaliatory crime, for example (is it even reasonable to think that someone could intend such a thing?). The court, in a 9-0 decision, said this was fine.
Jean Valjean broke a window pane to steal a loaf of bread. He intended to take the bread. It was not his. He committed a crime. What caused him to act? (1) A desire for money? (2) Did he need to feed his family? (3) Did he hate the store owner and want to deprive him of the profit from the bread? (4) Did he steal the bread because the store owner’s gay? It seems to me that all of those, including the last, are motives, and to argue that ONLY the last has no moral weight is to make an argument of equivocation that all the first three are somehow “intent,” while only the last is “motive.”
Here’s another, closer example. It’s legal to discriminate. It’s illegal to discriminate because someone’s a woman. How is that not punishing motive? Is there not a moral difference between the two?
And before you say it’s a silly example, let me again cite Wisconsin v. Mitchell: “Mitchell argues that the Wisconsin penalty-enhancement statute is invalid because it punishes the defendant’s discriminatory motive, or reason, for acting. But motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge. Title VII, of the Civil Rights Act of 1964, for example, makes it unlawful for an employer to discriminate against an employee ‘because of such individual’s race, color, religion, sex, or national origin.’”
Also, in Wisconsin, the court also reminds one of the Haupt prosecution from 1947, where the treason charge required that Haupt’s actions aiding Germany were motivated by a love of Germany and not by a love of his SON! You can find that case here:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=330&invol=631
There is a long tradition in the criminal common law of saying that sometimes, your reasons for committing a crime matter. Burglary, for example, is a specific-intent crime: breaking and entering with the intent of committing a felony. If you cannot prove that the person intended to commit a felony at the time of the breaking and entering, it isn’t burglary. Breaking and entering is usually a crime in and of itself, but the law has historically said that a person should have their punishment enhanced based on the intent behind the crime.
As per the difference between motive and intent, the legal difference is that intent is the state of mind required to have actually committed a crime (google mens rea), whereas motive is a state of mind that is irrelevant to the question of whether an act is criminal. So whether a state of mind is motive or intent depends on the mens rea required to commit a crime.
At best you can say that motive is OFTEN irrelevant to the question of whether an act is criminal. You can check out the SSRN article I pointed to above for various examples of how motive can be fully or partially inculpatory or exculpatory. Here’s what she says about motive versus intent:
“But the line between intent and motive is not always clear; indeed, those who have argued for motive’s irrelevance have often been required to shift the line between intent and motive in order to make the conventional wisdom regarding motive’s irrelevance descriptively true.”
The Supreme Court gave two examples in addition to the various ones given in the article above. First, choosing to discrimination against someone BECAUSE of their race is a crime. Motive, in that case, is an element of the crime. From Wisconsin v. Mitchell, “But motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws…mak[ing] it unlawful for an employer to discriminate against an employee ‘because of such individual’s race, color, religion, sex, or national origin.’” They also point to treason, about which they say, “Haupt was tried for the offense of treason, which, as defined by the Constitution (Art. III, 3), may depend very much on proof of motive.”
I don’t disagree. The difference in the law between the two is usually just the name. To the extent that state of mind is an element of the crime, it’s called intent. To the extent that it is not, it is called motive.
But my bigger point is that hate crime legislation no more “criminalizes thoughts” than laws against burglary. In the case of a bias crime, battery (or other applicable crime) with the intent to intimidate a protected community from participating in society or exercising a civil right is simply a specific intent crime.
Greg and Nate W.: I’m enjoying this discussion and planning to respond to these comments, but I’ve had a busy day and you’ve actually caught my blog in the middle of switching domains. If you can be patient, I’ll get to it by the end of the day.
[...] approvingly references a post by John Schwenkler. To me, Schwenkler seems to have missed his own point. He [...]
So I’m not sure that I follow the point about discrimination – not that I’m unmoved by it, but it seems to be a problematic example. By my lights, the key point is that when we say that someone has “discriminated”, we’ve underdescribed the action: we need to know what he discriminated on the basis of in order to know whether he did something wrong, in just the same way that we need to know whether, say, someone had paid for the loaf of bread he took out of the store before we can say whether it was theft. But the same thing doesn’t seem to me to be true in the case of, say, assaulting someone because of his race or sexual orientation: here, once we say that the action is that of assault (as opposed to, say, self-defense), we’ve specified what action it is, and there’s no further thing to say from the eyes of the law; insisting that there is would be like asking whether the guy who discriminated on the basis of race did so because he didn’t like minorities or just didn’t think they were very smart, or whether the guy who stole took the bread because he wanted it for himself or to give it to a friend. These latter things have to do with motivation, not with intent, and as such are irrelevant to characterizing the act – and hatred, I think, is solidly on the former side.
Perhaps we’re just going around in a circle, though. But please don’t think that I’m arguing in bad faith, or that I’m unmoved by the considerations that have been brought up. I’m just not convinced …
About the distinction between motive and intent, LaFave, the hornbook authority says we should just give up and acknowledge that sometimes the law looks at motive and calls it intent (as pointed out by Nate) and other times it doesn’t. Firing someone is an action we can specify without reference to motive, and to the extent that it hurts the person fired, you could even call it wrong. Firing someone BECAUSE OF their race is a crime. So, motive elevates something from a slight moral wrong to a criminal wrong. In the case of treason, it elevates what might be a slight moral wrong, or even a minor crime – giving comfort to a son who is a German saboteur because he’s your son – into a capital crime (the same aid BECAUSE it will help Germany and hurt America).
In the case of hate crimes, the law simply defines motive as an element of the crime, like for discrimination, and the legislature has determined that this motivation has special harm to society that deserve extra punishment. The court has said that this is no different than the myriad times the law looks to motive, so the legislature only requires a rational basis for the rule. Then, as Ralph suggests, the question becomes empirical. Does a hate crime affect the group? Does the white community feel a special harm when a boy is beaten into a coma by a group of African-American youth after they’ve seen Mississippi Burning as opposed to a random beating?
John –
You are certainly right to distinguish between intention and motivation as you do, and to claim that hate crimes laws, as they are typically formulated, concern aspects of motivation that go beyond intention (such as the emotional and attitudinal aspects of motivation — whether the act was motivated by certain sorts of hatred, etc.).
However, in my view this is not in itself any objection to hate crimes laws at all. I argued for this point at greater length in a (harshly critical) review that I published in the Journal of Homosexuality of a book by James B. Jacobs and Kimberly Potter (Hate Crimes: Criminal Law and Identity Politics), in vol. 45, no. 1 (2003), 152-159. (The review is also on my web site.)
This is not to say that I support hate crimes laws. The real issue is empirical: do these laws do anything to lessen the risk of group hatred — which seems to be a permanent danger in human affairs — festering and boiling over into violence? It seems to me that the jury is still out on that question….