CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, October 29, 2009

A Subjectivist's Caution on Hate Crimes (Alexander and Cole)

Alexander larryCole kevin The passage of the new federal hate-crime legislation, noted in a FindLaw article here, calls to mind the longstanding debates about such legislation. Much of it has focused on the constitutionality of such provisions. Hate crimes also raise sometimes overlooked questions of criminal law theory, and especially interesting ones for those who are subjectivists about punishment.

Much of the debate about hate crimes has centered on whether such crimes cause special social harms—perhaps an increased sense of isolation and fear among those within the protected group. These claims are subject to dispute, of course, but they are not clearly unreasonable.

For a subjectivist about punishment, however, an additional question remains. Even if hate crimes carry these extra harms, was the wrongdoer cognizant of those harms? A wrongdoer can be motivated by factors that society declares to carry special social harms without being conscious of those harms.

Consider an example that helps show the appeal of a subjectivist account of retribution. Compare a wrongdoer who, angry with a coworker, smashes a crystal trinket on the coworker’s desk. Most of us would probably think it relevant to punishment to know that the wrongdoer was aware that the trinket was a cherished family heirloom, rather than some random keepsake from a recent trip to Disneyland, regardless of the price the trinket could fetch on the open market.

Usually, the harms that drive us to criminalize conduct will be apparent to a wrongdoer with the mens rea specified for the offense. A murderer knows that a life is, at the very least, being placed in extreme risk. Systemic effects more plausibly can escape a wrongdoer’s attention, whether at the time of the wrongful act or even during the pertinent preparatory stages. A murderer quite plausibly might not ever reflect on how the murder will impact the neighborhood in which it occurs, for example. Similarly, one who acts out of hatred for a member of a protected class, even if motivated by the victim’s membership in the class, might act without any awareness of how the hate crime impacts the class.

Of course, some hate-crime perpetrators will act with awareness of, or even the hope that, their crimes will cause special fear within the targeted group. And some who destroy trinkets will target trinkets that are more highly valued than an ordinary property-destruction statute might presuppose. A subjectivist might oppose a special statute to address the problem of heirloom destruction because it doesn’t happen often enough to justify the statute, and might oppose a higher maximum punishment for the ordinary statute as creating greater problems than occasional underpunishment (like frequent overpunishment). If hate crimes are thought to create special harms, and to occur often enough, a subjectivist might accept the statute but prefer an element that is usually missing—an element focused not just on the wrongdoer’s motive, but on the wrongdoer’s consciousness of the special harms caused by crimes so motivated.


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