Friday, July 21, 2006

A Problem With The Justification Of Hate Crime Statutes

The rationale proffered for hate crime statutes is that, in David Neiwert's words, "[t]hey are essentially acts of terrorism directed at entire communities of people". I can't say that I disagree with this reasoning; if a hate crime really is an act of public intimidation then it seems reasonable to treat it as a more serious crime. But I think a problem arises in automatically assuming that a hate crime is an act of public intimidation. Its easy to conceive of a crime motivated by hate which the perpetrator did not intend to be a public message. If the perpetrator did not intend to perform an act of public intimidation then its hard to justify the increased penalty for the act. For example, cross burning is a public display. What happened to Matthew Shepard, being left tied fence for someone to discover, is probably a public display. Etc. etc. etc. Its easy to argue that there is a symbolic angle to these types of crimes and that they are purposely calculated to cause mass distress amongst members of the targeted minority. But consider another variation. The perpetrator selects a member of a despised minority, takes them out somewhere remote, and shoots them to death. The crime is motivated by bias against the minority, making it a hate crime. And yet I find it hard to argue that the act is intended to intimidate other members of the minority. Absent some sort of obvious sign to the contrary there's no way to distinguish this crime from a random act of violence. I propose an alternative approach, one which highlights the reasoning behind expanded penalties for hate crimes. Why not create a category of crimes along the lines of "intent to intimidate" or similar? I believe this is a superior approach for a number of reasons:
  • It makes the reasoning behind increased penalties transparent; people will now understand than an additional crime has been committed against the community at large.
  • It raises the bar for hate crime prosecution. Some people might consider this a downside, but if you believe that intending to intimidate the populace merits a stiffer sentence then you'd better be prepared to prove it.
  • It sweeps up a wide variety of crimes which have hitherto been treated disparately; such a statue could be used to prosecute both hate crimes and terrorism. This makes sense since, at their core, both hate crimes and terrorism are about intimidating a group of people.

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