Punishing hate and achieving equality

I Introduction Many people continue to believe (and the law increasingly agrees) that wronging others while, or as a result of, hating them ought morally to expose the wrongdoer to an increased or enhanced punishment--a penalty aggravated over what he or she ought otherwise to receive. This belief appears to be rooted in the presumption that hate crimes constitute a distinctive form of moral wrongdoing. Recently, the argument has been advanced that the distinctive wrong that obtains when crimes are committed from racial or other forms of animus consists in the violation of a conception of equality or fair treatment central to our political morality. This is the claim that I explore. It is not, I argue, as easily defended as is commonly supposed. This fact is significant, for it undermines one argument that has seemed compelling as a justification for hate-crime laws. Most hate-crime laws are structured as penalty enhancements. The precise formulation is somewhat complex, but the basic idea is that hate-crime laws add an additional layer of criminality "on top" of ordinary crimes, whenever those ordinary crimes are done from hateful beliefs and desires. Consider the following two cases: Case One: Jones decides to commit a robbery. Jones leaves his apartment and steps into the street. Jones targets Richard Roe because Roe is gay and Jones despises gays and wants to hurt them. Jones shoves Roe into a corner, threatens him with a gun, takes one hundred dollars from him, and leaves the scene. Jones is later arrested and charged with the hate crime of bias-motivated aggravated assault. Case Two: Smith decides to commit a robbery because he wants money. Smith leaves his apartment and steps into the street. Smith targets Richard Roe because he is the first person he sees. Smith shoves Roe into a corner, threatens him with a gun, takes one hundred dollars from him, and leaves the scene. Smith is later arrested and charged with aggravated assault. Since, in Case One, Jones targeted Roe because of his sexual orientation, existing law would permit (or perhaps even require) that he receive a greater punishment, other things being equal, than would be meted out to Smith in Case Two. Hate-crime penalty enhancement schemes have been the focal point of extended debate, much of which has coalesced along two discernible dimensions. One set of discussions, the principal focus of earlier contributions to this journal, (1) concerns whether hate-crime statutes are inconsistent with constitutional standards because they proscribe thoughts or ideas deemed offensive, such that those who wish to send hateful messages would be unconstitutionally prohibited from doing so by operation of hate-crime legislation, (2) or that they would be punished merely for instantiating certain character traits. (3) Critics have insisted that enhanced punishments for hate are indefensible on their face, since such laws impermissibly punish persons for entertaining certain thoughts or beliefs. (4) According to James Jacobs and Kimberly Potter, "recriminalization or sentence enhancement for the same injurious conduct when it is motivated by prejudice amounts to extra punishment for values, beliefs, and opinions that the government deems abhorrent." (5) Some of these critical arguments are obvious nonstarters: for example, the claim that bias-crime laws improperly treat "thoughts" as a defining element of crime. As has often been observed, the law routinely makes an actor's thoughts a necessary element of criminality, at least if by "thoughts" we mean something like the person's beliefs and intentions, goals, and desires. (6) Critics of "punishment for thoughts" concede this much but insist that no one's punishment should turn merely upon his entertaining certain beliefs. In one sense, of course, that is simply not what is happening: hate criminals are not being punished simply for holding beliefs, but for acting upon them. …